Lord Davies of Oldham: My Lords, the noble Lord overplays his hand somewhat. Of course the general public treat government statements and statistics with proper scepticism. We expect that from a mature and educated electorate. He will recognise, however, that not only did we come to power pledged to improve the quality of statistics but that we acted on this in 2000 by the decisions we took on the independent presentation of statistics. The new Bill, which will be before this House in the very near future, enshrines the concept of an independent stance on statistics. That will add to the confidence which the statistics already enjoy.

Lord Davies of Oldham: My Lords, I have many responsibilities but responsibility for the noble Lord, Lord Pearson of Rannoch, is not one of them. I want to emphasise that we do not regard Article 308 as being the Trojan horse of the European constitution. It is being used in this context in a very limited way. The noble Lord, Lord Dykes, is right to refer to the previous circumstance in which it was used, with regard to tsunami relief, one which also commanded wide assent. Let us just reflect on the fact that it can be used only with the Council's unanimous consent. Therefore, the idea that it would be used easily, readily and flippantly, or against significant opinion within the European Community, is quite wrong.

Lord Stoddart of Swindon: My Lords, do we not want an excellent service throughout the country. Is the franchising system the best way of achieving that? After 10 years, is it not about time that the Government looked at the whole basis of the railway system in this country?

Baroness Barker: My Lords, in Committee I raised the question of what mental health legislation is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about whether it is possible or desirable to include principles in the Bill. I have gone away from every meeting trying to answer the question of what difference it would make in practice. The answer came to me after I listened to two people.
	The first person was Professor Appleby, the Government's mental health adviser. On 30 January, in a meeting with a number of all-parliamentary groups, he talked about the role of mental health legislation. He said that it is possible to take one of two approaches: either you believe that mental health legislation is about enshrining rights and responsibilities—in which case practitioners are looking over their shoulders all the time to make sure that what they are doing is correct—or you believe that there should be a limited role for the law and that practitioners should be allowed to carry on and get on with the job of making people better. Those were perhaps overstated positions but they clarified for me the role of mental health legislation. It is about setting out, using the best knowledge available to us, what we believe is the ethical basis of legislation. This legislation governs the only form of treatment that can be given to a person compulsorily against their wishes—the only detention outwith the criminal justice system.
	The second person who gave me some clarity on the matter was the Minister. In our discussions in Committee he talked about the 1983 Act. He said that it already contains overriding principles,
	"albeit that they are inherent in its provisions and not separately spelled out".—[Official Report, 8/01/07; col. 47.]
	He went on to list six, one of which is the principle of least restriction. Twenty-three years on, arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to what parts of mental health practice it applies. It is no wonder that practitioners look over their shoulders. There is a lack of clarity about the law.
	I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked very convincingly about dealing as an MP with very difficult cases of people with a mental illness causing extreme problems for other people. However, I have concluded, for the reasons I gave, that unless we have not only a clear statement of principles in the legislation but also clarity about how the legislation and the code of practice work together, we will condemn practitioners and people subject to this law to continuing confusion. That, I believe, would be wrong when we have the chance before us to shed light on the matter.
	My second point is, again, one that I raised in Committee. If we accept that there should be principles, what should they be? The noble Earl, Lord Howe, has explained why this time around the amendment, which stands in both our names, has been changed to accommodate some of the problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as those of us who worked on the Mental Capacity Act did when we were trying to achieve the same ends. Parliamentary counsel explained that we could not use the standard equalities and diversity format that one would use elsewhere.
	I want to return to the principles in the code of practice and to take issue with how some are written. The participation principle in the code of practice talks about care or treatment being provided in sucha way as to promote patient participation, self-determination and personal responsibility to the greatest practicable degree. It is not clear exactly what that means.
	In the "respect for others" principle, the code talks about people being treated with respect and the respect for wishes and feelings so far as they are known. At a later stage we will talk about the efforts which should be made to record a patient's wishes and feelings and how practitioners need to take account of them.
	The principle of minimum restriction in the code of practice is ambiguous. It talks about restriction and keeping the use of compulsory powers to the minimum necessary—"the minimum necessary" to do what? I hope that the Minister will accept that there is a case not only for including some principles in the Bill but also for an explicit statement about how they will interact with principles in the code of practice.
	As the noble Earl, Lord Howe, said, the reason for that is not pedantry. It is perhaps one of the most important decisions we can take. The aim is to end up with legislation that not only appeals in that it has a principled nature but in practice offers security and clarity to those who will be subject to it and those who have to operate it, whose professional reputation rests on it. I believe that we have come to, if not a perfect compromise, a way forward and I very much hope that the Minister will accept that.
	As we have said, we have an opportunity that comes but very rarely to Parliament to make legislation that will affect the lives of many vulnerable people. I hope that in doing so, we will pass legislation that is fit for purpose.

Lord Carlile of Berriew: My Lords, this debate and the whole debate on principles are about legal clarity. If the courts have legal clarity, they can enforce laws made by Parliament. If they do not have legal clarity, I am afraid that we will get laws made by judges, because they will be left to interpret opaque determinations by Parliament. The rule in Pepper v Hart enables courts to look particularly at ministerial Statements made in debates such as this. Pepper v Hart discussions are a poor substitute for clear and enforceable law. The Minister will know that there is no area in which judges are more inclined to make or reinterpret law than in the area of judicial review. I urge him, when he responds to the debate, to take the view that the more clarity that emerges from this Parliament, the less likely it will be that judges, who can sometimes be naïve in their interpretation of that often hilarious concept—the intention of Parliament—will try to interpret what we have decided in a way that is far departed from our true intention, if we understand that intention.
	I am sure we all agree in this House that it is essential that some people should be detained compulsorily. However, those who are so detained can face long detentions, sometimes for the whole of their natural lives. Those of us who have visited hospitals such as Rampton, Broadmoor, and St Andrews in the private sector, have seen very high quality care provided for mentally disordered people in those institutions. But it needs to be very high quality, because such institutions are accommodating them for a very long time. Furthermore, in many cases, they are accommodating people who do not understand why they are detained compulsorily or who are unwilling to be detained for as long as they come to be. I am sure we would all agree that it is essential that those who are detained should have a right to challenge that detention, which both they and the courts should understand with certainty. It is essential that the basis—the principles—on which they are detained are understood.
	In 1999, which is seven and a bit years ago now, the expert committee chaired by Professor Genevra Richardson, now of King's College London, not only recommended that principles should be set out in the mental health Bill that it was considering—the first version of a three-edition attempt to reform the law—but set out those principles in its report. The Mental Health (Care and Treatment) (Scotland) Act 2003 set out in legislative form the principles that underline all decisions about compulsory detention in Scotland. Some pretty insulting discussions have taken place in this House about the size of Scotland and differences between Scotland and England, but I understand that there is no difference between Scotland and England and Wales in terms of the removal of freedom from citizens of the United Kingdom. I am puzzled at how the Government can justify a difference between citizens of the United Kingdom living in Scotland who are detained and citizens of the United Kingdom living in England and Wales who are detained, and I remain to be persuaded that there is any sound basis for it.
	In March 2005, the joint scrutiny committee, supported by evidence from the Joint Committee on Human Rights and numerous others, reported that it was essential for principles to be in the Bill. Whatever the Minister says today, the Government have had over seven years to consider this. During those years they have indulged in a form of intellectual hokey-cokey that is perplexing to those of us who try to take a serious and consistent view of the issue of principles, and the Minister will be aware that when the Government responded to the joint scrutiny committee, they indicated that they were well disposed to including at least some principles in the Bill. The joint scrutiny committee set out the principles we believed should be included, and although the Government did not indicate that they accepted them all, they certainly did not make it clear in their response that they thought that no principles should be included or that they should be minimalist. Surely a strong argument can be made for consistency on this issue between different pieces of legislation. The Children Act 1989 and the Mental Capacity Act 2005 include principles, and the purpose of those principles in these complex Acts is clear. As the committee said, they make clear to everyone implementing the legislation what they are trying to achieve and what considerations should guide their actions. I suggest that those principles and that form of clarity should be jettisoned only for sound and compelling reasons.
	I am reluctantly prepared to support this amendment because I regard it as minimalist; it is better than nothing, but it is nothing like what the joint scrutiny committee wanted. I shall listen with great care to the Minister, but I urge him not to try to persuade the House that nothing is something, because we will not be persuaded. As the former chair of the joint scrutiny committee, I for one am absolutely determined that if the Government do not make a meaningful concession in this regard, we will return to this issue in the future.

The Lord Bishop of Coventry: My Lords, I support the amendment which, as I understand it, places these principles not only in the Bill but, by extension, in the 1983 Act.
	I welcome the amendment for three reasons; the first is to do with transparency and clarity, a point that has already been made. I speak as a mere layman in matters of law, but it seems that clarity and transparency are essential not simply for the sake of those who are called upon to make judgments in these matters but for the general purpose of the public, who need to understand what this is all about.
	Secondly, I, too, believe that there needs to be consistency with other Acts, particularly the Mental Capacity Act. The principles would provide a parallel with those set out in that and other legislation.
	Thirdly, the principles are entirely consistent with the Judaeo-Christian understanding of the dignity of human beings. However, it is not simply the Judaeo-Christian understanding but one with which people of a humanist or secularist vent would be perfectly happy to identify. It is difficult to see how the principles of maximising patient participation, taking account of patients' feelings and wishes, the avoidance of discrimination and of least or minimum restriction could ever be thought outdated or irrelevant.
	I believe that the amendment will provide useful guidance and constraints on treatment and go some way to meeting the remaining anxieties about the effect of the powers in the Bill on people with mental health problems.

Lord Turnberg: My Lords, I apologise for not having spoken at the Committee stage of the Bill, but I was unavoidably elsewhere, and I could not be in the House. I will just say one or two words of support for the principle of having principles on the face of the Bill. It would be invaluable to have them there, for all the reasons that have been rehearsed here, both today and previously.
	However, I have one or two concerns about these particular principles. My first concern relates to the phrase,
	"present and past wishes and feelings of the patient".
	Of course, the feelings of patients are vitally important. My difficulty is how to define those on the face of the Bill. I wonder whether the words "and feelings" are helpful.
	My other concern relates to the referral to the other Acts. Presumably the other Acts are all in force. I am unclear whether it is essential to have referrals to those Acts in the Bill because, presumably, someone would be acting illegally if they contravened, for example, the Sex Discrimination Act irrespective of whether or not it is mentioned in this Bill. I wonder whether those Acts should be there.
	I fully support the principle of having principles. I hope my noble friend will take into account the strength of feeling around the House.

Baroness Carnegy of Lour: My Lords, I am sorry that the amendment is not as detailed as the one we discussed in Committee. I thought that the Government's argument against that amendment was extremely weak. We were told that because of the way in which the Bill amends the 1983 Act, it was very difficult for the draftsman to know whether all the principles would be in the list. That was a pathetic argument. If the draftsman could not ensure that we should not be pursuing this legislation. But now we have a much simpler amendment which, from the way people have been talking, is less satisfactory than the previous amendment but better than nothing.
	I was not sure about the argument of the noble Lord, Lord Soley, that because four other Acts are mentioned in the amendment it might make practitioners more liable to prosecution under those Acts. But such law exists and if for some reason people went astray they could be prosecuted under those Acts anyway. So it would not make any difference; it is just a way of identifying principles of discrimination.
	The point made by the noble Lord, Lord Carlile, about the principles on the face of the Scottish Bill is very important. Should we be legislating in the United Kingdom about the liberty of people with mental illness on grounds of different principles on different sides of the Border? I shall say something later about what the Minister said when he described the differences in another aspect of the Bill as one of the "beauties" of devolution. It is not a beauty of devolution if one's liberty is threatened on different grounds of two sides of a border in the same nation. That is a very unfortunate aspect of the Bill.
	However, the Government seem determined to do this. I detect from the debate that they prefer this amendment to the one in Committee and perhaps they will see their way clear to putting principles, which according to their lights are appropriate, in the Bill. I support my noble friend.

Lord Hunt of Kings Heath: My Lords, as at Committee stage, we have had a very good debate on the question of principles and I hope to offer noble Lords a constructive way forward.
	There is no disagreement between the Government and noble Lords who have spoken today. Like the noble Earl, Lord Howe, we wish to see a clear statement of values, as he described it. Nor is there any argument about the need for as much clarity as possible both within the legislation and the code of practice. We could have a theological debate about the thousands of practitioners out there and the extent to which they consult the legislation and the code but it is clear that, collectively, we have to ensure that practitioners understand both the legislation and the guidance. That understanding goes together.
	The Government's concern all along has been with the way that the amendments have been put forward. Although it appears to be straightforward to add a number of principles to the Bill, unless these things are drafted as carefully as possible, far from giving clarity, there could be confusion among practitioners. That is why we have been working hard to see whether we can find a way through that accommodates the clear wish of noble Lords and practitioners to understand fully the principles that inform the way this legislation will be dealt with and practised, at the same time as ensuring that we clarify and not confuse.
	There is no argument that the principles that underpin a Bill that amends an established Act, which enables people to be deprived of their liberty, are of critical importance. Deprivation of liberty is a serious issue and we must deprive people of their liberty only when it is essential to do so. We have to achieve the right balance of powers to intervene to prevent harm and to safeguard an individual's rights. However, in the light of comment on the Bill over the past weekend, I want to emphasise that the intention is not to lock up more people or to keep people unnecessarily under compulsory powers once they have been detained in hospital. The Bill is about ensuring that people who need treatment, because they have a mental disorder that is so serious that they are a danger to themselves or others, get the help and protection that they need in the right environment. We want to reduce the incidence of patients with a mental disorder losing touch with mental health services after being discharged from hospital, getting ill and reaching a crisis.
	It is clear that the principles that we have debated today and in Committee would provide reassurance about our intentions with the legislation. In Committee, I explained some of the problems that we have with including principles in the Bill. I know that the noble Baroness, Lady Carnegy, criticised the government response, but in my winding up speech I said that it was not about the niceties of parliamentary draftsmen. Because of the way that these amendments would appear in the Act, there is a danger that, instead of the clarification that she seeks, considerable confusion and uncertainty could be caused for practitioners.
	The noble Lord, Lord Carlile, mentioned, as he did in Committee, the Mental Capacity Act and the Scottish Act. Much water has flowed under the bridge over the past eight or nine years but the Government have decided to produce an amending Bill not a comprehensive new Bill covering all mental health legislation. Consequences flow from that. One is that it is not easy to simply graft the principles that have been suggested onto the existing 1983 Act. I accept that the noble Earl, Lord Howe, and his fellow proposers have made every effort to respond to the points that I made in Committee two or three weeks ago. Their amendment would require all those discharging any function under the Act to have regard to each of the three principles and then exercise the function in the least restrictive manner—but even those principles, when placed in legislation, would raise some issues. The current Act makes specific and detailed provision for a multitude of different situations. Principles may already be given specific effect in the relevant part of the Act or may not in fact be relevant to every situation or, as my noble friend Lord Turnberg said, may conflict with each other or with the specific provisions of the Act. What weight is the decision maker to give to the different criteria in that case? Is there a potential for him to be challenged because he has, for example, not complied with the patient's wishes? Will patients who would otherwise be detained for treatment be released with consequent risk to public safety and their own because the decision maker thinks that the patient's wishes and the need for minimum restriction must take precedence over the risk of harm to themselves and others?
	The 1983 Act already embodies the principles that are proposed in the amendment. Part 2 of the Act provides the basic criteria for detention for civil patients. For example, to detain someone under Part 2 of the Act specific criteria must be met to ensure that hospital treatment under compulsion is both appropriate and necessary. First, the patient must have been examined by two medical doctors who must conclude that the patient is suffering from a mental disorder, and that that disorder requires treatment in hospital. But this is not all. The medical practitioners must conclude that the mental disorder is such that the patient is at risk of harm to themselves or to others. They must be able to determine also whether other methods of dealing with the patient are available, and, if so, must be able to explain why they are not appropriate. In addition to these strict criteria, it is a requirement of the process of detention that the patient participates in the process and that an attempt is made to ascertain their wishes and feelings. These principles are embodied in Section 13, which requires the approved social worker to interview the patient. The approved social worker under Section 13 must also satisfy themselves that admission to hospital is, in all the circumstances of the case, the most appropriate way of providing the care and medical treatment that the patient needs—and this embodies the principle of using the minimum restriction.
	The need to allow the patient to make clear his views and to take account of them when considering admission is already catered for in the 1983 Act. What would be the effect of adding a requirement to consider separately the principles set out in the amendment? Does it mean that if the patient does not want to be detained he should not be, or should the fact that the statutory criteria are met outweigh the patient's wishes and the minimum restriction principle? The answer is unclear.
	In Committee, noble Lords expressed concern about the provisions for supervised community treatment, and amendments have been tabled to tighten the criteria for being placed on a community treatment order. This amendment requires function to be carried out in a manner that involves the minimum restriction necessary. It is at least arguable that supervised community treatment is less restrictive than detention in hospital. This amendment might cause confusion and uncertainty as to the use of supervised community treatment. It could also raise questions about the application of the specific criteria for supervised community treatment in light of the principle.
	I refer to the remarks of my noble friend Lord Soley and the noble Lord, Lord Patel, on non-discrimination. The general laws on discrimination will apply to those who have functions under the Act. Many laws come under the discrimination banner; they are detailed and complicated and contain exceptions and qualifications. Practitioners are without question already subject to these laws. The amendment lists four laws, and states that people should have regard to the principles in those laws. Interestingly, none of those laws has explicit principles. The principles in those laws, as in the Mental Health Act 1983, are inherent in the provisions. Not all the provisions of the laws the amendment mentions will apply or have relevance to a person carrying out functions under the Mental Health Act. For instance, some of them relate to employment issues. Therefore, the amendment might cause confusion whether the practitioner should adhere to all the principles in each of those Acts, or only those that would normally apply.
	We do not take issue with the amendment in principle but we are concerned about its practical effect and the confusion that it might cause. I have attempted to identify areas where that confusion might arise.
	The noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to discussions that took place. I want to respond to this debate as positively as possible and to meet noble Lords' concerns. I recognise that they wish to see principles placed in the Bill. I suggest that that can be done in a way that will not cause the confusion that this amendment and the one tabled in Committee might cause. Therefore, I intend to introduce an amendment at Third Reading that will provide a requirement—I stress that it will be a requirement—based on Section 118 of the 1983 Act, which relates to the code of practice.
	The amendment will require the Secretary of State and Welsh Ministers to include a statement of principles in their respective codes. I stress that it will be a requirement on the Secretary of State so to do. The amendment will also detail the key principles that the code will be expected to follow. I believe that that is a sensible way forward. It reflects the clear message that noble Lords and practitioners have given that they wish to see principles in the Bill. By requiring the Secretary of State to ensure that there are principles in the code of practice and to list in the Act the areas that the principles might cover will produce a satisfactory outcome which will not confuse but rather clarify the position. That outcome will acknowledge the point raised by the noble Earl, Lord Howe, right at the beginning on the importance of values.

Lord Falconer of Thoroton: My Lords, the Statement continues:
	"Indeed, there was vocal opposition to it from many honourable and right honourable Members on both sides. As Leader of the House, I have listened carefully to these views and reflected on them over the recess. I do not want discussions about procedure to overshadow the important substantive debate we will have on the future of the House of Lords itself. I think we all agree that we must not let process get in the way of a reform to which all parties are committed. "I therefore wish to tell the House that we shall not be proceeding with the alternative vote proposal. Instead we shall revert for all votes to the traditional Division system. This will mean that there will be a series of resolutions put to the House for separate votes at the close of the promised two-day debate on Lords' reform. "We will consult the usual channels and interested Members on the exact form of the resolutions and their order."I hope that what I have said is for the convenience of the House".
	My Lords, that concludes the Statement made by the Leader of another place. The House will appreciate that this Statement was delivered by my right honourable friend the Leader of another place about the voting procedure for the other place. It has implications for voting in your Lordships' House about which, with the leave of the House, I will say a few words.
	We intended that your Lordships' House should have the opportunity to decide whether to use any new voting method adopted by the other place. I refer to paragraph 11.7 of the White Paper. As the alternative vote proposal is not now being pursued in the other place, we do not intend to propose it for your Lordships' House. The usual channels will discuss how to conduct the votes on the options, using the normal Division Lobby method of voting.

Lord Strathclyde: My Lords, I thank the noble and learned Lord for repeating this most unusual, but equally perfectly welcome, Statement and for confirming that this House will not have proportional representation-style STV voting of the kind so championed by the Liberal Democrats from time to time.
	I am sure that the noble and learned Lord will recall that only two parliamentary days ago, shortly before the short recess, he made a Statement on reform of your Lordships' House. He then waxed lyrical about his plan for preferential voting. He said it was,
	"specifically designed to enable those voting ... to come to a decision on this issue".
	He attacked the traditional way of voting, saying it was,
	"no good—it does not work".—[Official Report, 7/2/07; col. 713.]
	Now, here he is popping up again, bold as brass, advocating the very system he told us only a couple of days ago was no good.
	I hope that the noble and learned Lord will say what happened in the intervening period. It is all very well having a change of heart, and that is welcome, but what happened? Was it a change of heart from No. 10 or, indeed, from No. 11? After all, he did not answer when I asked him last time whether the Chancellor was fully behind the 50-50 plan. Well, is he, my Lords? Why does not the noble and learned Lord tell us and make our day?
	The noble and learned Lord has either come out on the wrong side of an internal row in government, or he and Mr Straw have been mugged by the parliamentary Labour Party. Which is it? The whole House is agog to learn why what he swore blind so recently was right he today tells us is not. Can he promise the House that he won't be recommending preferential voting again on Wednesday?
	When I had the temerity to suggest that not everything in his plans for the House was right and that we should take some time to think things through, the noble and learned Lord did more ho-hoing than a Santa Claus in a shopping centre in December. "Everything's worked out", he said. "It's time to press on. We've looked at everything". What a pity for him that he did not see the garden rake he was about to tread on over the recess. We should now take that opportunity to reflect carefully on the other details of his predictably poorly received 50-50 plan. I expect that before this process is over he will have changed his mind once again; but, like him, I look forward to the debates that we will be having in a few weeks' time.

Lord McNally: My Lords, it is fair to say that two weeks' ago the noble and learned Lord the Lord Chancellor and I had some fun at the expense of the Leader of the Conservative Party, when I compared him to Blackadder in the First World War. When I tried to sum up my own feelings on the performance of the Lord Chancellor, I have to say that the Charge of the Light Brigade came most immediately to mind. I feel a little like one of the cavalry men sent into the valley. I was so impressed with that image that I looked up an assessment of the Charge of the Light Brigade. Under the heading "What went wrong?", it said:
	"In a nutshell, a commander failing to take account of the fact that he was on a hill and could see what was going on and his troops could not!"
	Although I am willing again to join any charge that Lord Cardigan and Lord Lucan—or is it the noble and learned Lord the Lord Chancellor and Mr Straw?—call for, I get the impression that they are conducting a battle at the bottom of a hill where two maps join. I hope that the noble and learned Lord realises that, whenever you make a Statement such as that, you should look at who is smiling to find out whether one side or the other has won. I am afraid that the forces of reaction will take the most pleasure from this retreat.
	It is important that we get a clear and settled view from the House of Commons. Can the noble and learned Lord confirm that the House of Commons will have a debate and make its decision before this House does so? That will inform the debate here. I support what he said about having the same voting system. It is essential that the same system is used at both ends. Therefore, although I regret the retreat from the alternative voting procedure, I support the fact that we shall have exactly the same system.
	Finally, can the noble and learned Lord confirm that the Government are still committed to carrying forward reform of this House? As he said, all three parties were committed to that at the last general election. Will he also make every effort to ensure that reform is carried through with some sense of the dignity of this House, rather than the kind of shambles that he has had to report to the House today?

Lord Falconer of Thoroton: My Lords, it is a great honour to be described as Santa Claus by the noble Lord, Lord Strathclyde. It is hard to imagine anyone who looks more like Santa Claus than the noble Lord, Lord Strathclyde, particularly when you see him at the Prorogation ceremony. My wife and children will be delighted that I was described as a member of the Light Brigade. I have not been described as that for some time.
	We have eaten humble pie in relation to this matter—but not much humble pie in my case, being a member of the Light Brigade. We searched for consensus in the House of Commons and found it rather more quickly than we thought we would—namely, no to the AV procedure—and we responded to it straight away. I do not think that any further explanation is required: as is obvious, we are a listening Government.
	We are very keen that Lords reform be properly debated. I thoroughly agree with what my right honourable friend the Leader of the other place says: let us focus on the substantive issue, not the process. We are committed to allowing a free vote to take place. In relation to the question raised by the noble Lord, Lord McNally, the debate in the Commons will take place before the debate in the Lords. As the noble Lord, Lord Strathclyde, said on the previous occasion, everyone will have an opportunity to discuss it. Let us discuss the merits of the issue rather than the detail around it.

Lord Rix: My Lords, before speaking to Amendment No. 2, on which I shall detain your Lordships for a very short time, I should like to express my thanks to all those who sent their good wishes for my speedy recovery—it is six weeks since I was able to attend your Lordships' House—and particularly to those who so ably took my place on the amendments in Committee, which I hope brought forth government amendments that will be acceptable as we go through the Report stage.
	I pay tribute also to the two Ministers concerned—the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Ashton of Upholland—who have extended the greatest possible courtesy by telephoning me and keeping me in communication with exactly what was happening in the House of Lords. I am extremely grateful to them. I say as a dispassionate outsider for the past six weeks, reading the goings-on in your Lordships' House, that I can only hope that, later this week, the other place votes for the right selection when it comes to the reform of your Lordships' House. The quality of the debates and of the amendments put forward has been extraordinary.
	Amendment No. 2 would delete the words,
	"unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part".
	I believe that those words unfairly pick on people who may well not have a mental disorder but who may well be frustrated for other reasons. I have previously put this case to the Minister, and I know that the president of the Royal College of Psychiatrists, Professor Sheila Hollins, has put exactly the same case. Unfortunately, the Government seem unable to accept my amendment. There seems little point in my pressing it to a Division because I know perfectly well that, even if I were to win, it would be overturned in the other place.
	I can therefore only hope that the Government will offer me a lifeline in the code of practice. Having listened to the Government's response on the first amendment, I hope that the code of practice will be strengthened by the attachment of principles to the Bill. The codes of practice therefore become very important. They currently do not apply to this caveat in the Bill. I can only hope that the Minister will give me an assurance that something will be done about this in the near future. I beg to move.

Earl Howe: My Lords, we return to an issue which we debated in Committee but did not resolve—the question of whether, in redefining what is meant by the term "mental disorder", the Bill should at the same time draw clear boundaries around that definition by making clear what it does not encompass. We on these Benches regard this matter as particularly important.
	When the Richardson committee reported in 1999, it recommended that a new Mental Health Act should contain a broad definition of "mental disorder" to replace the detailed diagnostic categories in the 1983 Act, and that this broad definition needed to be balanced by some exclusions. The Bill contains a new broad definition but no exclusions other than dependence on alcohol or drugs.
	The broad definition has two consequences. The first is that it covers all the diagnoses listed in the WHO International Classification of Diseases 10—ICD-10—some of which are completely inappropriate for compulsory powers. Secondly, it potentially covers almost any significant deviation from a normal condition of the mind, however temporary that deviation may be. There is nothing in the Act or the Bill that confines the definition to the conditions listed in ICD-10. There needs to be some limit to guard against the inappropriate use of the clinician's power of detention. Without such limits, the powers are capable of being used, even in a well-intentioned way, as a form of social control.
	Any decision by a clinician to detain a patient against his will always and inevitably rests on the clinician's discretion. In practice this discretion is wide, and because of that it is not acceptable for the law to be expressed in such a way as to allow the clinician total freedom to interpret its meaning in any fashion he or she chooses. Clinicians themselves acknowledge this. They support the proposition that there should be clear limits on their powers.
	From the clinician's point of view, the exclusions need to be there so that the right questions can be asked. Let us imagine a doctor faced with someone who is distressed, disturbed and behaving in a strange way. What lies behind his behaviour? Is it misuse of alcohol or drugs? Does the person have odd or eccentric beliefs that cause him to behave in a strange manner? Does he have an uncontrolled temper? Would his behaviour be seen as normal, or at least as comprehensible, in a different culture? It is only by asking questions of this sort that doctors can avoid arriving at wrong conclusions. If the questions are not asked, the danger is that all sorts of people who are not mentally disordered in the true sense will be swept up by the use of the powers in the Mental Health Act.
	The noble Baroness, Lady Murphy, spoke powerfully in Committee about people who are social misfits: people on drugs, religious fanatics, or people with odd sexual urges. They are difficult to help, but any well-intentioned clinician naturally wants to help such people. The law should make the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal grounds for compulsory detention are an underlying mental health diagnosis. When confronted by an oddball patient, the clinician has a duty to make sure that his decision to detain is not based on spurious reasons.
	In Committee, the Government argued that exclusions in the Act would create uncertainty and that they would be arbitrary. I do not agree, and nor does the Royal College of Psychiatrists, the British Psychological Society, the British Association of Social Workers and the Royal College of Nursing, to name but a few members of the Mental Health Alliance. Exclusions serve a significant purpose, one that other legal jurisdictions in the English-speaking world have acknowledged. The equivalent mental health laws in Ireland, Scotland, New South Wales, Victoria and New Zealand contain exclusions on a basis similar to that set out in this amendment.
	To be specific about it, I do not think that it is acceptable or right for the law to allow someone who is drunk or high on drugs to be compulsorily detained for that reason alone. But if the Government have their way, he could be—misuse of drugs or alcohol is classified as a mental disorder under ICD-10. A single episode of misuse could fall within that. Given that the Bill excludes from "mental disorder" the more serious forms of alcohol and drug misuse, it is difficult to see what argument the Government have for excluding the less serious forms. The draft code of practice explicitly mentions acute intoxication as a possible ground for the use of powers under the Act. Absolutely no justification is offered for that.
	Equally, the proposition that someone who exhibits gender dysphoria, transsexualism or a sexual fetish should be eligible for compulsory detention is completely unacceptable. Yet these conditions are classified as mental disorders under ICD-10. I and many others would argue that they are not true mental disorders. Nor is behaving in a manner that is considered socially unacceptable or expressing a way-out political opinion. This country is not Soviet Russia and is in no danger of being like Soviet Russia. But the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will further confuse in the public mind the role of psychiatry and mental health services.

Earl Howe: My Lords, the key test is whether there is an underlying mental disorder. That may exhibit itself in any of the behaviours listed in the amendment. The question which the clinician has to ask himself or herself is whether there is an underlying mental disorder. They should not allow the issue to be clouded by extraneous behaviour that has nothing to do with the mental disorder.
	As I was saying, the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will confuse the role of psychiatry in the public mind; moving them, as far as perceptions go, from the proper aim of assessment and treatment of mental disorder into the area of social control. We have often spoken about the fears and apprehensions of the black and ethnic minority communities. Disproportionately high numbers of people from B and E backgrounds are diagnosed with major mental illness and detained. To the extent that the Bill may serve to add to the current negative view of mental health services among those communities, it will have failed. That point was very powerfully made by the noble Lord, Lord Adebowale, earlier.
	There is a real worry that stereotyping and misunderstanding of black people may lead to unnecessary and unjustified use of compulsion. That worry is not imaginary; it is based on current practice under the 1983 Act. Extensive literature confirms that racism can apply in mental health practice. It is even more likely to happen under the broader definition of "mental disorder". Psychiatrists acknowledge how difficult it is to distinguish symptoms of genuine mental disorder such as hallucinations from beliefs that to a particular individual may be culturally or religiously appropriate, such as belief in spirits or in witchcraft. Without an exclusion of the kind I have proposed, we will see an increase in the degree to which diagnosis of mental disorder depends on discriminatory assumptions and on the subjective judgment of clinicians.
	That is the rationale for the amendment. I believe that the arguments which the Government have put forward for resisting it are wrong. I therefore ask the House to give it full support. I beg to move.

Baroness Murphy: My Lords, briefly, I support the noble Earl, Lord Howe, on the amendment. I do not want to repeat what I said in Committee, but many of our discussions throughout the passage of the Bill have been intended to ensure that people who are really in need of care and treatment have it made available to them. All of us have that concern, but we have approached it in different ways. In refusing the exclusions, the Government are misguidedly trying to draw into mental health services a much broader range of people who at present would be excluded and whom, mostly, we would want to be excluded.
	I remember the wonderful tease of the noble Lord, Lord Alderdice, over the auto-erotic strangulation case, which somewhat confused the noble Baroness, Lady Royall, at the time. That was a wonderful example of how very many sexual perversions and fetishisms there are. We know that there are eccentricities that we do not want included in treatment where there is no defined mental disorder. I take the point made by the noble Lord, Lord Soley, that where there is a mental disorder exhibited through an obsessional behaviour that is criminal or distressing, that ought to be included, but it is perfectly possible to make that distinction.
	Most common law jurisdictions across the developed world have such exclusions, for very good reason. We have forgotten how very recently it is that people complained that too many people were drawn into mental health legislation through an overbroad interpretation of the Act. That is why we have the exclusions: to define exactly whom we are trying to detain in this way to help them. I strongly support the amendment.

Lord Owen: My Lords, we can fairly claim that this issue is a question of principle, and a substantial one at that. It is and has been for many years necessary to make a clear distinction between the roles of medicine, particularly for psychiatrists, and criminal justice. Few would deny that psychiatrists have to deal with problems closely related to criminality and therefore to criminal justice, but they are inexorably being drawn across a threshold which I think it is extremely important to establish. In the background to this legislation, what people outside this House have used as a justification for it gives reasonable cause for concern. There seems to be a feeling that some of the acute social problems facing society can be handled by psychiatrists and compulsory orders. That is a very dangerous path for this House to allow any government to move along.
	The wording of the amendment is modest. It makes it clear that,
	"a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of".
	It does not exclude people who are alcoholics or taking drugs; it does not exclude people of different sexual identity or orientation; it does not exclude illegal or disorderly acts, and it does not exclude those with different cultural, religious or political beliefs, whether they believe in voodoo or anything else. All these are real problems, but we must have a very clear line drawn in the sand: doctors ought to be able to state that these are not medical disorders.
	This amendment has to be linked with the next one which provides that doctors must have reasonable grounds for thinking that they can alleviate the disorder. The word "likely" is probably used correctly, but I do not want to stray into that amendment. However, taken together these two amendments establish an important principle and safeguard the medical profession from being drawn across a line into the field of criminal justice—that of policeman, probation officers and all those involved in the maintenance of criminal justice. Of the need for psychiatrists and the medical profession to help people in the implementation of criminal justice I have no doubt, but they should not be dragged across this line. For me it is a line worth upholding as a matter of principle.

Baroness Kennedy of The Shaws: My Lords, I too support this amendment. As noble Lords know, I am a practitioner in the criminal courts and a great deal of my work takes place at the interface between law and psychiatry, so I am conscious of what has happened in other common law jurisdictions and have made a point of following closely the ways in which those jurisdictions have dealt with the problems the Government are seeking to address in this legislation. One of the tests of whether we are complying with the rule of law is that there should be clarity. Because of this, jurisdictions such as New Zealand have decided that it is far better to set out the exclusions in legislation. New Zealand felt that this was important because nothing focuses the minds of professionals more than the fact that the law is there. That is its purpose. As others have said, it would draw a line in the sand and focus minds, thus making sure that we do not transgress in any way and so create a situation where those who should not be included in this legislation are inappropriately brought under it. We would not run the risk of using a compulsory mental health section in circumstances where it should not be used.
	It is for this reason that so many of the professionals involved are rising to their feet. All I can say to the Government is that while we are mindful of their good intentions, given that so much has been said about the expertise present in this House, and how it has been lauded on that expertise, they should listen to it.

Lord Adebowale: My Lords, I want to reiterate my support for the amendment and follow up on some comments I made in Committee. I wish to speak briefly about some of the specifics, first in relation to substance misuse. Here I should declare again an interest as chief executive of Turning Point which provides services to more than 70,000 people with substance misuse challenges.
	Unlike the Bill, this amendment specifies substance misuse as well as dependency. That is important because both the misuse of and dependence on substances are included in international classification systems used by psychiatrists such as ICD 10, mentioned by the noble Earl, Lord Howe. Unless the legislation excludes both misuse and dependency, it could mean that people come under mental health law inappropriately.
	Let me give an example, as I am prone to do, from Turning Point's case files. John is one of Turning Point's alcohol service users. He is a binge drinker but is not dependent on alcohol. He does not have a concurrent mental health problem, but he reacts to times of personal and emotional crisis by drinking. He will drink heavily for several days and nights before crashing. He then will not drink alcohol for several months. John's irrational behaviour could mean that he is inappropriately sectioned under mental health law unless exclusions in the Bill also cover substance misuse.
	Having explained the need for exclusions solely on the basis of misuse or dependence on alcohol or drugs, I stress that if a person has a dual diagnosis of a mental disorder and a problem with misuse or dependence on alcohol or drugs, they should not be excluded from treatment under the Act. As I highlighted in Committee, Turning Point's experience is that people with a so-called dual diagnosis have been turned away from mental health services in the past, due to the current exclusions in the Bill, so it will be vital for any code of practice to address the issue and address it properly.
	Secondly, with regard to,
	"cultural, religious or political beliefs",
	while I do not think it is the Government's intention to use psychiatry as some kind of social control, these things have a horrible habit of happening by accident and by fashion. I need not repeat the substantial and undisputed evidence about high rates of detention among people of African and Caribbean origin in comparison with those who are white British—we have discussed that enough today. However, I repeat my firm belief that in the light of these statistics, it is imperative for the Government to take proactive steps to address this imbalance. The amendment is an important way of doing so. I would dearly like to believe that racial and other stereotypes do not influence diagnosis, but the reality for many of the young black men I have spoken to—and it usually is young black men—is very different. I urge the Government to accept the amendment.

Baroness Royall of Blaisdon: My Lords, this has been an important debate on a key part of the Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in Committee, and in many ways the arguments have been well rehearsed, although I have learnt an enormous amount including about the apophatic tradition, about which I will read more. I must say from the outset that it is absolutely not our intention to detain anyone except on the basis of their mental disorder. We will do everything possible to ensure that no individual is subjected to mental health treatment unless they have a mental disorder.
	Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have said it will be much wider—the definition of mental disorder. The Joint Committee on Human Rights referred in its recent report on the Bill to the,
	"breadth of the new definition of mental disorder",
	and an argument was put forward that the widening of the definition must be matched by more exclusions. The Government do not agree with that, but before turning to the amendment itself I would like, if the House will allow me, to set out exactly what effect the Bill would have on the definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is sometimes thought.
	Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In fact, the only real change to the scope of mental disorder in the Act generally flows from the removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for assessment under Section 2 of the Act, and various other powers, that is the only change. I will return in due course to the merits of that change.
	A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for medical treatment, guardianship and, in future, supervised community treatment, will not be limited to the current categories of mental illness, mental impairment, severe mental impairment and psychopathic disorder. These are legal, not clinical, categories and the boundaries of "mental illness" are uncertain. That means that we cannot say precisely what will be covered by the relevant provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in adulthood will now be covered for the first time; likewise, personality disorders that do not fall within the definition of "psychopathic disorder". That might, for example, cover someone suffering—and I do mean suffering—from a borderline personality disorder, with all the relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly, too, the effect will be to widen the scope of the relevant provisions to include certain autistic spectrum disorders; certainly, it will remove any uncertainty about their status. These are not insignificant changes, but they do not amount to the significant widening of the definition of mental disorder that people sometimes ascribe to the Bill.
	It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises that in its refusal to state definitively what constitutes "unsoundness of mind" for the purposes of the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies on the clinical professions taking the lead in defining and classifying mental disorder. But that is not to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When we talk of clinically recognised mental disorders, we mean disorders recognised as such by clinicians at large. That does not necessarily mean exactly what is listed in the International Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do not purport to be the last word in what is a mental disorder, and they too get out of date, but they offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder.
	The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line should be drawn for the medical profession. It is conceivable, I suppose, that some day a Government might attempt to put in the legislation a detailed statement of what is and is not a mental disorder. I doubt that it would be popular with the psychiatric world, but a Government might be compelled to do so if it concluded that the profession was taking an approach that was unsupportable in a democratic society. I do not think that we are anywhere near that position right now.
	I should also say something else about the context within which the question of exclusions should be considered. There must, of course, be safeguards against improper use of the Act, but the definition of mental disorder is by no means the only place, or indeed the most obvious place, to look for such protections. There are already safeguards in the procedures for detention. No single professional can have someone detained. The criteria for detention impose further strict limitations. Then there are the many other external safeguards, both within the Act and beyond it. There is the Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged body which will take over its role in future. There are the clinical governance arrangements that all mental health service providers must have. There is professional regulation and, above all, as the noble Lord, Lord Soley, said in Committee, the rule of law.
	Of course, those protections are not perfect, and not every professional attains the high standards of the majority. Mistakes get made, even by the most conscientious of professionals. We must all, collectively, work together to improve standards across the board; but I urge the House, in thinking about this amendment, not to forget that there is an intricate and extensive network of safeguards that goes far beyond what is achieved by refinements to the definition of mental disorder and exclusions from it.
	The exclusions proposed in the amendment are of two types: those that would substantively limit the disorders in respect of which the powers in the Act could be used to help and protect people; and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers designed to send signals about how the Act should, and should not, be used. Substance misuse is, I think, in the former category. In my experience, the Government are often challenged to say why their proposals represent an improvement. In this case, I feel justified in asking the same question of the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords want to exclude from the Act those people who are now properly detained because of a substance use related disorder? If they do not want to do that, why none the less are they willing to take the risk of it happening? As many noble Lords know far better than I—

Baroness Royall of Blaisdon: I am not arguing against that position. I shall come back to that matter shortly, if I may.
	As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with many other mental disorders. No one is ever likely to be detained because they are mildly depressed; major depression is a different matter entirely. Of course, no one is going to be detained just for being drunk, but sometimes it makes good clinical sense to detain someone who is profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or other people at risk. The symptoms may recede with the intoxication, which can sometimes take days, or it may turn out that they are symptoms of another disorder.
	The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that is, substance dependence and mental illness—being refused services because of current exclusions. He gave an example of where exclusions are being misunderstood or misused to exclude people from the help that they need.
	On sexual identity and orientation, one significant change has been made to this amendment since we debated it in Committee; namely, the change from "sexual behaviours" to "sexual identity or orientation". We continue to believe that an exclusion for sexual identity or sexual orientation in the way that they are normally regarded—that is, heterosexuality, homosexuality and bisexuality—is simply redundant. Noble Lords are familiar with the arguments on that, so I shall not repeat them.
	The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of professional practice. If there are problems of poor practice, they must be tackled as such.
	On criminal acts and cultural, religious and political beliefs, the remaining elements of the amendment are there to send signals that the Act is not to be used to exert social control, that criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that diagnosis must be based on patients as they are, which includes their cultural, religious and political background, assumptions, values and beliefs. I simply cannot agree that people will be detained because of their cultural, religious or political beliefs.
	Those are sentiments with which the Government wholeheartedly agree and that are clearly set out in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord Adebowale, suggested that the code of practice should be strengthened in this and other areas. We would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder.
	We still disagree on whether the way to send out and emphasise these messages is to amend the Act to purport to exclude these matters from the definition of mental disorder. The House is familiar with our arguments in this area and I will not repeat them in detail. However, we are more than ever confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be misapplied or interpreted in an unintended way.
	Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction for a serious offence, I might be getting quite excited at the possibility that this House was seriously considering adding the exclusion for criminal acts. Of course, I would realise that it was not intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the less its legal effect. There may be few such patients, and one would hope they would not succeed. However, I do not think that we should take that risk.
	It has also been argued that these exclusions would engender trust in the Act, but the Government do not think that they would. I understand the need to engender confidence, especially among the black and ethnic-minority community, but I do not see how people who do not trust professionals to make the right decisions will have their minds changed by these declaratory exclusions when the same people will have to apply them.
	It has been argued that the Government should accept this amendment as a sign of good faith and, in particular, their commitment to eliminating discriminatory attitudes and practices within mental health services. I note the comments made by the right reverend Prelate the Bishop of Coventry and many other noble Lords. However, had the Government come forward with these exclusions and said, "Look, here is proof of our commitment", I wonder how readily others would have been convinced. We will be, and we want to be, judged by the action we are taking, not least through our Delivering Race Equality programme, and not by whether we agree to include some well meant but otiose words in the Bill. The earlier debate on the elimination of discrimination in relation to principles is very important in this regard. I hope that that may be dealt with at Third Reading.
	Many noble Lords have contrasted the Government's approach with that taken in Scotland, Ireland, New Zealand and a number of other Commonwealth jurisdictions. It is not my place to comment on the wisdom of approaches taken by other legislatures, although I caution against the assumption that what works well in one legal system can automatically be transferred to another. Indeed, one does not need to look long at legislation from other countries to see the immense, almost bewildering, variety of ways in which legislatures have tried to define mental disorder or, as the case may be, the types of mental disorder to which they wish their particular legal framework to apply.
	The approach we have taken is one of simplicity. This is not because we necessarily take a different view of the disorders that should potentially engage powers of compulsion, although on paraphilias we take a different view from that of the Scottish Parliament. It truly is more the case that we are wary of putting words in the Bill that are legally unnecessary, however much we agree with their underlying sentiment.
	I have listened carefully to the important debate this afternoon. I have reread the debate that we had in Committee and have heard all the arguments put forward in the discussions which my noble friend Lord Hunt has had in the past three weeks. The Government have listened to all the arguments and fully agree that this legislation must not be used to wrongly subject any individual to mental health treatment. However, in relation to substance misuse, sexual identity and sexual orientation, we do not think that an exclusion is needed or that it is the right thing to do.
	On the rest, while we agree with the objective, we do not agree with the proposed means of achieving it. We do not believe it will deliver the benefits sought by its proponents and fear that it will create a risk to the effective working of the Act, something which is best avoided. I would be grateful if the noble Earl, Lord Howe, would reconsider his amendment.

Lord Soley: My Lords, I shall have one more attempt, if I may, to try to persuade the House that the Government are more right than wrong, although as I said when I last spoke on this subject, they may not have gone far enough. We may need clearer legislation.
	I understand fully the position of the noble Lord, Lord Carlile, and I respect it. He feels very strongly on the principle of the issue and has a very good track record both on civil rights and on understanding their context in society. I want simply to try to balance the arguments for and against. A perennial problem in mental health issues is that because we do not have as clear a definition as we would like, particularly on personality disorder, we move around trying to find the right position. Over time, the only thing about which we can be certain is that we have got it wrong some of the time and have sought to adjust it. On balance, of course, we tend to make some quite good decisions, too.
	I agree with a comment in one of the letters that the Minister sent to Members of the Committee—that personality disorder is a definition of exclusion in too many cases. It excludes people from treatment. I therefore say straight away that the position of the noble Lord, Lord Carlile, and those who support his position is that the Bill as currently presented risks creating a situation in which people will be treated inappropriately. In a previous debate, the noble Lord, Lord Winston, gave an example of a case where inappropriate action was taken. It was a good example, and that does happen. Let me be clear: I am not saying that there is not a danger of that.
	I ask the supporters of the amendment to take into account the other side of that equation—that many people with personality disorders who could be treated are at the moment not being treated. They are not being treated not only because no facilities are available; too often they are not being treated because the phrase "they are not treatable" is used. I am not citing only the examples that I gave when I last spoke on this issue. I do not call in evidence my previous experience as a probation officer 30-odd years ago, but I do cite the experience of many Members of Parliament who have to deal with difficult cases in which they receive letters from health authorities saying, "Sorry—we are not prepared to treat". Yet everybody knows that a treatment is available for those people.
	Those supporting the amendment are very strong on the patient's right not to be treated and pretty strong on doctors' rights not to treat people if they do not want to, but they are very weak on treating those who need treatment. They are playing into a situation that has troubled the mental health field for far too long, whereby a dustbin label is put on someone—the original label was psychopathy, but it is now personality disorder—saying that they cannot get better and are untreatable, so nothing is done about it. In reality, treatments are now available. As I said earlier, I am sometimes troubled that we pay too little attention in these debates to other treatments available from psychologists. Psychologists often, although not always, have a longer period of training than many psychiatrists. It is important to get the balance right. The noble Lord shakes his head. There are examples of psychiatrists having shorter training periods than psychologists. It is not a crucial argument because we know that there are no absolutes in any of this. We are dealing with behaviour.
	As for the definitional problem, the fact is that mental illness exists. It can be shown in an individual standing alone in certain circumstances. Much mental illness, however, takes place in a social setting and comes to our attention only because of its impact on society. That cannot be ignored. As the Government and noble Lords have rightly said, you should not treat a person for a mental illness simply because of something that is happening in society unless it can also be shown that there is a problem for the person. But many cases of personality disorder, particularly when the impact is felt in the local community, are distressing for the individual, too. They might not express it by saying "I am distressed" when they are causing amazing problems for those around them or attacking people in the street or whatever. They may be very defensive about what they are doing and claim to be perfectly rational, but that happens also with other aspects of mental illness. Personality disorder is not the only situation where the person denies an illness or condition that could be treated, to put it more appropriately. I accept that there is a problem with calling personality disorder an illness, but I do not accept that there is a problem with saying that personality disorder can be treated. It might not be cured in the full sense of the term, although even that could be arguable, but the situation could certainly be alleviated.
	When I last spoke on this I gave a couple of examples of the impact on the community, which we cannot ignore. The impact, particularly in stressed, inner-city areas, comes to the attention of Members of Parliament because the person's behaviour becomes so extreme that others are frightened by it—and often rightly frightened; it is not imaginary. People may find the behaviour so disturbing that they try to remove themselves from the setting although they can see, and will often say, that the person concerned is "mad". They use the term in the conventional way that society uses it. They express total amazement when they are shown a letter from the health authority saying that the person has an "untreatable personality disorder". They see the impact of the personality disorder. If the individual lived on a desert island or in the middle of nowhere, the behaviour would probably not be noticed. But that does not mean that the individual is not a distressed person who requires treatment. The social and community aspect is important.
	Debates in this place are good because they are so often fed by experts with expert knowledge. But one of the advantages that the House of Commons has over the House of Lords, not always having that expert knowledge and having other agendas as well, is that it picks up this sort of issue on the street. The other week I gave those examples because they are real cases causing real distress to people who are not being treated, as well as to the community. I say to those who support the amendment that my argument essentially is that the other side of the patient's right to refuse treatment and the doctor's rights to refuse to get involved with difficult cases such as personality disorder is that those who are not being treated but could be treated, should be treated. There is an element of principle there.
	Personality disorder has for far too long been used as a means of excluding people from treatment and ignoring the impact on the community. We then get horrific headlines in the tabloids about a person who has killed someone after being turned away from a hospital because they were labelled as untreatable. I have had plenty of battles with the press generally and with the tabloids in particular about how they present stories, including stories on mental health. When I presented my Bill in the House of Commons 10 or 15 years ago on the freedom and responsibilities of the press, we took evidence from, among others, those who represent mental health patients, because of the way in which those patients were presented in the press. But however bad those stories are, if we fall into the trap of saying "Oh, we must just ignore the press on this," we also end up ignoring the important reality of the underlying story for those who are affected by it. We cannot afford to do that. That is the difference between being an MP and a Member of the House of Lords—as an MP you pick up these issues on the street. It is there; it is not imaginary.
	Finally, I ask the Government to think hard about another issue. Shortly after I came to this place I proposed that the two Houses should consider a reform to enable the two Houses to conduct post-legislative scrutiny of Acts. We are now some way towards that. I have been arguing for some time that the Lords could play a premier role in that task, because noble Lords would be very good at looking how legislation is working. If, as I hope, that becomes possible in the not-too-distant future, I hope that my noble friend on the Front Bench will volunteer this Bill for post-legislative scrutiny.
	I think that the Bill will work well on balance although there are one or two difficult areas where we may have to revisit it. I may be proved wrong and there will be cases where people are treated inappropriately, and that should trouble us; but perhaps those who take the opposite view will be proved wrong and the Bill will be shown as too weak in insisting that those who need treatment should get it. That is necessary not just for them but for the community, always on the understanding—the critical base point—that the treatment must be a hopeful concept for the individual who is in distress.

Lord Alderdice: My Lords, Amendment No. 12 demonstrates how the Government are broadening the field in this legislation in respect of mental disorder and medical treatment. In regard to the problems with which the legislation is trying to deal, the field has been broadened beyond the effect on the person himself. Psychiatrists, psychologists and other healthcare professionals are being asked to address the problems of society, which were set out by the noble Lord, Lord Soley.
	The legislation is not intended to deal with people who suffer from particular kinds of personality disorder, such as borderline personality disorder, to which the noble Baroness, Lady Royall of Blaisdon, referred—that term has come into psychiatry relatively recently; that is, in the past 25 to 30 years. It is not a question of whether treatment is available; treatment is available on the basis of whether resources are available, not on the basis of whether there is a Mental Health Act. The Act is there for the compulsion of patients.
	The kind of personality disorder being adverted to is not where a person has a conflict inside himself, is deeply troubled and wants help; it is where a person does not have a conflict inside himself but has a conflict with society, does not seek treatment because he is not aware of any problem and therefore does not try to deal with it, but other people around him suffer from the effects. The criminal law is there to deal with him if he breaks the law and the contract each of us has as a citizen with the rest of the community. That is perfectly appropriate, but what is not appropriate is to provide in a Mental Health Act that the effects of a person's actions on other people should be the reason for the treatment meted out to him. It would not be treatment through medication because the only medication that would be of any value would dope him to the point that he did not know what was going on but would not have any therapeutic benefit.
	The noble Earl, Lord Howe, is right that the key words in Amendment No. 12 are the last two: "or effects". Effects on whom? The effects on the person himself or the effects on society? In other words, if the person's behaviour does not trouble him, but troubles the rest of society, it should be dealt with not under the criminal law but under mental health legislation, and doctors, psychologists and nurses should cope with it. That is the problem. That is why Amendment No. 7 refers to preventing,
	"a deterioration in his condition".
	The key question is whether we are asking psychiatrists, psychologists and nurses to deal with society's problems or to deal with the problems that patients have inside themselves that cause them difficulties. That is their role. They have a role, but it is not primarily the role of healthcare professionals to be social policemen.

Lord Hunt of Kings Heath: My Lords, this has been a good debate. I was grateful to the noble Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I disagree with him about the Bill leading professionals towards unethical behaviour or being a code of practice for a turnkey situation. That is not the Government's intention, nor is it the intention of the legislation. There have been constructive discussions between noble Lords on this matter. I recognise how important our understanding is of the meaning of "appropriate treatment". I hoped that the amendment would commend itself to noble Lords. It is clear that there are issues, particularly the meaning of "or effects", that need to be teased out. If noble Lords do not press this amendment to a vote, I intend to see whether there can be further discussions between now and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of the specific comments made.
	We want to ensure that detention and the other powers in the Act are only ever used for proper healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering them treatment. We wish to remove the treatability test, as discussed in Committee, because we believe that it has led to a culture in which too many people, especially those with personality disorders, are labelled untreatable. It is almost as though the treatability test has perversely been taken as a signal that those people are assumed to be untreatable. I well understand that the treatability test is not the sole cause of this problem, as a complex web of factors has come into play, but I am satisfied from my discussions with many people in the profession that the test seems to have been an important part of the problem in dealing with and treating—albeit a small number—people who undoubtedly require support.
	There are clearly misapprehensions about the Government's intent in removing the treatability test and replacing it with the appropriate treatment test. One of the problems has been that many people approach the appropriate treatment test as though it were the only criterion to be met before a person could be detained. That is not the case. Before it even falls to be considered, a decision will have been taken that the patient has a mental disorder which makes it appropriate for them to receive medical treatment in hospital. If an application is being made under Section 3, not only must it be appropriate that the patient receives such treatment, it must also be necessary for their health or safety or the protection of others, and detention must be the only way of ensuring they get it.
	Secondly, it has been suggested—and a number of noble Lords have said so tonight—that the purpose of the appropriate treatment test is to permit the detention of people with personality disorders who are dangerous but who have not committed any crime. Nothing could be further from the truth. We hope that abolishing the treatability test will help change attitudes that have limited the services available for people with personality disorders and excluded them from available services. I understand the issue that the noble Lord, Lord Alderdice, raised about available resources. I understand that there are a number of factors. This is not a simplistic approach, but we think that the treatability test has inhibited the health service from providing the right care and treatment to the group of people we are talking about. Nothing in the Bill, in case law or in the Government's policy equates detention with medical treatment. Detaining someone is not treatment; even detaining someone in hospital is not treatment.
	It has been suggested that "appropriateness" is such a vague concept that it will give clinicians carte blanche and so make patients scared to contact mental health services. I understand those concerns. I would be concerned if that were the case. The last thing I would wish to do would be to discourage people seeking help which the service should be giving to them, but "appropriateness" is neither a loose nor a novel concept; it is already used in the criteria. Moreover, it captures the decision that needs to be made: is suitable treatment available for the patient? I have said that the appropriate treatment test does not give professionals carte blanche. As with any judgment they make in any field, clinicians must make their decision in a professional, ethical way and be prepared to defend it. Sometimes in our debates we have lost sight of the ethos of the professions we are concerned about.
	It has also been argued that the appropriate treatment test may require clinicians to act unethically, either by detaining people without treatment or by giving treatment they consider clinically inappropriate. I do not believe that the appropriate treatment test could possibly be said to force clinicians to act unethically; it is a test of whether suitable treatment is available. If clinicians do not think that such treatment is available, they will not—indeed, they must not—recommend detention. If a clinician subsequently discovers that the original assessment was wrong, and there is no appropriate treatment to offer, they must take the relevant steps to secure the patient's discharge.
	The noble Earl, Lord Howe, asked, if appropriate treatment in some cases could consist of a therapeutic regime under clinical supervision that helped control the effects of a patient's condition, what was there to stop such an approach in all cases? His description very much relates to the Reid case and the implications of it. It is implicit, surely, in the concept of appropriateness that what is appropriate for one person will not be appropriate for another. There are undoubtedly some patients—probably only a small minority—for whom the only appropriate treatment is the kind of therapeutic regime that, the Law Lords decided in the case of Reid, not only constitutes medical treatment but also meets the treatability test. They may be people with a mental disorder that is largely intractable but for whom some of their symptoms, at least, can be alleviated to a degree. Clearly, such treatment would not be appropriate for a person whose mental disorder was potentially curable or where medication, say, would be likely to have a greater effect than a supervised therapeutic regime.
	In other words, what is appropriate inevitably relates in part to what can be achieved. I do not see how it can allow anyone to be detained for treatment that has not even tried to achieve what can reasonably be expected to be possible. Furthermore, the appropriate treatment test has its own distinctive advantages. In particular, it requires a holistic assessment of the patient's needs—their clinical needs and their personal circumstances. It requires that there should be treatment available that suits the patient's needs in the round.
	I accept that there are lingering doubts about the appropriate treatment approach. That is why I have tabled government Amendments Nos. 8, 11 and 12. They provide in terms that references to medical treatment for a mental disorder means medical treatment for the purpose of alleviating the disorder, its symptoms or effects or preventing the disorder, its symptom or effects worsening. In other words, they make explicit what the Government have always intended to be implicit; namely, that the purpose of medical treatment under the Act must be to address the person's mental disorder or its effects. It follows that no treatment could ever be appropriate unless it has that purpose.
	Noble Lords have focused on the use of the words "or effects" and suggested that the provision is too wide and would allow a person to be detained just to stop them from carrying out certain activity. One suggestion was swearing, and there were one or two other suggestions about some activity which perhaps would be deemed to offend society as a whole. The reason for including the word "effects" is that if we do not say that the purpose can be to alleviate effects or stop them worsening, what would happen in the case of a person with a chronic condition for whom treatment could realistically only address the symptoms or effects? I simply do not recognise the wider fears that noble Lords have about the use of the word "effects" as an intent of the Government. As I have said, I am willing to take this matter back to allow for further discussions between Report and Third Reading to see whether further progress can be made. My tabling these amendments today reflects my willingness to listen to what happened in Committee and to take a positive approach. I am quite happy and prepared to continue that positive approach.

Lord Carlile of Berriew: My Lords, first, I am grateful to the Minister for addressing the debate in such detail and for giving a response that has been helpful to a limited extent. Secondly, I thank all those who have taken part in this debate of nearly an hour on an important issue at the centre of the concerns that many of us have about the Bill and the Government's approach to the reform of compulsory mental health law. I was going to spend a little time answering the noble Lord, Lord Soley, but I will not because, in my view, the noble Baroness, Lady Murphy, has briefly but comprehensively answered the point that he sought to make.
	Clinicians are obliged to act within the law, whatever their medical ethical codes say. We in this place and the other place make the law and the power of Parliament is such that if we pass a law that forces a change in their ethical code, it is only on the highest slopes of judicial review—possibly even in the European Court of Human Rights—that there is any prospect of obtaining change. I am very persuaded by the fact that we have heard from two extremely distinguished psychiatrists during the course of the debate: the noble Baroness, Lady Murphy, and my noble friend Lord Alderdice, who have expressed great misgivings about the Government's approach to the whole question of therapeutic benefit.
	We have heard not only from them. Over the weeks and months we have heard from many of their colleagues, in particular, from the Royal College of Psychiatrists. They are all totally unpersuaded by the Government's approach. Nobody who could properly be treated, as the noble Baroness, Lady Murphy, said, would be excluded if our Amendments Nos. 4, 6 and 7 were adopted.
	The Minister generously offered to talk further on the matter. However, I see no meaningful sign of movement in his approach. He said to the House just a few moments ago that the Government still, after this debate, see a justification for leaving in the words, "or effects". Considering that remark, it seems to me that the time has come for the House to show what it thinks on the issue of therapeutic benefit.

Lord Carlile of Berriew: My Lords, I am very grateful for that, but the Government have had since March 2005, to take an important date when the Joint Committee's report was produced, to consider the issue. They had notice of the amendments. For the life of me, I cannot see how the words of AmendmentNo. 4 disadvantage the Government in any waywhatever. Other stages of the Bill will take place, not least in the other place. In my view, the time has come for this House to express an opinion on the issue. That is what I propose to ask the House to do. I hope that that will not be regarded as discourteous by the Minister. It seems to me an appropriate step at this stage.

Baroness Royall of Blaisdon: My Lords, I will have to write to the noble Lord on that issue; I will do so gladly and with expediency, and will put a copy of my letter in the Library.
	We understand the concerns that have been expressed today. Our policy has always been that the decisions of the responsible clinician must be founded on consultation with the multidisciplinary team. However, we feel that the responsible clinician must retain the final say in those decisions, as the person with overall responsibility for the patient's case. We have offered a compromise so that we can place what is already good practice in statute.
	The amendment in the names of the noble Lord, Lord Carlile, the noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, concerning the procedure for extending a community treatment order also requires an AMHP to agree that the conditions for extension are met. We fully agree that the extension of a community treatment order deserves very careful consideration, which is why the Bill provides for a robust process for that decision. The responsible clinician must examine the patient and consult with another person who has been professionally concerned with the patient's medical treatment. If the responsible clinician is not a doctor, then the person consulted must be a doctor, or if the doctor has not been involved in the patient's treatment, then a doctor who is an approved clinician who has examined the patient must be consulted. The responsible clinician must then submit a report to the hospital managers with the outcome of that consultation. On receipt of the report, the hospital managers may hold a hearing to consider whether they wish to exercise their power of discharge. Where the hospital managers are not satisfied that a patient should remain on the community treatment order, they have the power, under Section 23 of the Act, to discharge the patient.
	There are other safeguards to ensure that a patient does not remain subject to a community treatment order inappropriately or indefinitely. Given these safeguards, and the rigorous procedure for extension, we do not believe that it is necessary to put an additional step in the process for extending a community treatment order by requiring the agreement of an AMHP. It would mean a different process from that for the renewal of detention. That does not seem logical, particularly if the process already requires consultation with other professionals involved in patient care.
	I commend Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 to the House and invite the noble Lord, Lord Carlile of Berriew, to withdraw the amendment.

Lord Carlile of Berriew: rose to ask Her Majesty's Government whether physical restraints, including seclusion and strip searching, are used on children in custody.
	My Lords, if any of your Lordships are fed up with the sound of my voice today, I should say that no one is more so than me.
	I welcome the opportunity to hold this debate, now that time has passed in which to digest the report of an inquiry I chaired, produced last year for the Howard League for Penal Reform. I declare an interest as the president of the Howard League. The report recommended that mechanical restraints such as handcuffs should never be used on children in custody; that the use of physical intervention should be severely restricted; that physical force should never be used to secure compliance or as punishment; that stripping children during searches should end; that prison segregation units should not be used for children; and that the Children's Minister, not the Home Office, should have overall responsibility for children in the penal system. I shall be very interested to hear the Minister's response to that last point, as some press reports have indicated that the Government may well be reviewing the situation and are thinking of transferring overall responsibility for children in the penal system to the Children's Minister. Children are children are children, whatever they have done.
	On 29 January 2007, as reported at col. 6 of the Official Report, the noble Lord, Lord Bassam of Brighton, stated that occasionally physical restraint, regrettably, has to be used on young people in secure accommodation but that it is for their own safety or for the safety of others. I am afraid that that answer, particularly the use of the word "occasionally", showed a failure by the Government to understand the scale of the problem. Little has changed since the publication of the Howard League report. There are currently about 2,900 children in custody, of whom about 230 are in secure children's homes, 270 in secure training centres and the remainder in young offender institutions. In the 12 months leading up to last October, as revealed in an article by Jamie Doward in yesterday's Observer newspaper—after he had been through some statistics which Ministers had kindly provided in answer to a series of parliamentary Written Questions—prisons used physical restraint on children in young offender institutions on 4,801 occasions.
	I suppose that, if you were to interpret the language in its most literal sense, that may mean "occasionally" 4,801 times, but given that similar restraint methods were employed in the same period in secure training centres on 3,036 occasions, adding up to nearly 8,000 occasions overall, one could hardly describe the use of physical restraint as occasional.
	Indeed, the use of other measures to which the report referred have continued unabated, although the statistics are more available than they used to be. Our inquiry for the Howard League for Penal Reform found that one in five instances of restraint resulted in an injury either to the child or to a staff member. Last year, at Hindley young offender institution, three children sustained fractured wrists as a result of the use of control and restraint. At Ashfield in Bristol, on average, 30 boys each month are held in solitary confinement.
	My inquiry, through the good offices of the Howard League for Penal Reform, visited a number of segregation units and saw how young people and children are kept in solitary confinement. I can tell the House that the conditions in solitary confinement have not changed physically for decades. Some of the cells used for solitary confinement—and some stay in those cells for up to 28 days—are positively medieval in their physical facilities. I am afraid that in some places there are some medieval attitudes consistent with the physical facilities.
	In my view there is absolutely no occasion on which it is necessary to carry out the fully undignified total strip-search. There is never an occasion where it can be justifiable to require a boy or girl to remove all their clothing, top and bottom, at the same time, but it happens. When are strip-searches justifiable? They may be justifiable in a small number of instances where there is a real ground for believing that, for example, drugs or other contraband are concealed. Those sorts of instances do happen. However, they cannot have happened 6,832 times at Huntercombe between January 2005 and October 2006. It is inconceivable that more than a handful of strip-searches, even conducted in a dignified way, were justified in that period.
	The Chief Inspector of Prisons, Anne Owers, stated last year that at Huntercombe, children and young people was still automatically strip-searched in some instances. She was very concerned that force was used for those who did not agree to be strip-searched. Noble Lords should put themselves in the position of an immature child: they may be violent and dishonest, but they are often mentally ill and almost always immature. They go into a place such as Huntercombe, which does not stand alone in this matter, and automatically, as the chief inspector put it, they are strip-searched. Their human dignity is removed at a stroke, the moment they arrive.
	When you set alongside that some of the induction videos that I have seen which are used for children who enter these institutions, you are left in despair. They had me thinking of television of the quality of "In Town Tonight". I mention such an old programme because we are a rather aged House and there will be people here who can remember the rather rudimentary form of television used by that programme. If you want to engage with children, you put things in front of them that they understand. You use DVDs which talk to them in the way that computer programmes such as the Sims talk to young and older children these days. You engage with them so that they feel part of the process.
	If our custodial institutions, which contain far too many children, are to have any effect in improving their lives, it has to be on the basis of a contract between the child and the institution. It may be that most of the conditions are made by the institution, but if you cannot induce consent from the child, you have lost the battle and are pushing them through the inevitable revolving door which will lead them from local authority secure children's home to secure training centre, from secure training centre to young offenders institution, from there to prison and within prison to indefinite sentences, which are being given to thousands of people. They will be the very people who will add to the huge problem of overcrowding in prisons today, much of which is caused by people effectively facing life sentences.
	The Howard League for Penal Reform report which was contributed to by many people, including the noble Lord, Lord Ramsbotham, was a wake-up call to the Youth Justice Board and the Government, but if you look at what has happened since we produced the report, they have been waking up very slowly. As long ago as 1996, the Audit Commission, in a memorable report, demonstrated that, if you spend £1 when a youngster is a child on the prevention of crime, at 1996 prices you save £7 later. If one conservatively doubles those figures to meet 2007 prices, you have clear evidence that we are throwing the wrong money at the problem in the wrong way. By brutalising children in particular in the ways that I mentioned, and which the report refers to, we are perpetuating the problem. I hope that we will hear a constructive answer from the Minister about those issues tonight, and I look forward to hearing some interesting speeches.

Baroness Bottomley of Nettlestone: My Lords, it is a privilege to follow the noble Lord. We all hugely admire his report, which has been a benchmark against which we should test standards of care for children in such institutions. I make a formal declaration of interest. The executive search firm of which I am a partner has recently been entrusted with an assignment for the Youth Justice Board. I am not personally involved in the search, which is being led by a consultant in another practice.
	I also declare a more passionate and long-term personal interest in this subject. Before I entered politics, for many years I was chairman of the juvenile court in Lambeth. I presided at the time of the Brixton riots. I also worked in a number of children and adolescent mental health units, as well as being closely involved with the Children's Society. I also lived in the area—a location some three miles from the recent tragic incidents.
	We speak in the wake of the UNICEF report describing the unhappiness, lack of well-being and poverty of children in this country, which has come as a great shock to us all. We need to spend time thinking that through.
	What struck me at the time—and I have not changed my mind since—is that, in a criminal career, if someone cared about a child, any problem would be picked up by the school and the child might be put in a special school. They might be picked up by social services and given special social service provision, or specialist mental health provision might be found for them. But the children with the least—with no advocates or stakeholders—were the ones who ended up in court. In court, you noticed that those children almost invariably could not even read the oath. They had been failed by the education system. When they did not go to school, nobody bothered to find out where they were, because, frankly, they were such a nuisance that it was better to turn a blind eye. I can think of no occasion in 15 years where a child in serious difficulties would appear in court with two adults who had been that child's parents and carers since the child was born.
	At the same time, I would constantly have conversations with my friends and colleagues about how critical it was that their child went to a particular school. They would say that two years at a particular sixth-form college would transform the child's life and would have such an influence in terms of culture, peer group and values that the child would, after two years in that educational institute, be a new and different, cultured, civilised and enlightened person. Somehow no one seemed able to translate the values that they had for their own children, which came from care, control and supervision. What parent of teenage children does not know that it is supervision that ultimately stops them hitting the buffers from time to time? So the least privileged go down into penal institutions.
	I was asked at that time to chair a report for the Children's Society, Penal Custody for Juveniles. We came up with a series of recommendations that hold as good today as ever: that courts should not be able to sentence juveniles to prison department custody; that it should be local authority not Home Office provision; that there should be a juvenile crime authority in each local authority, a bit like the young offender teams; and that there should be proper community programmes. The noble Lord has just made the same point.
	I am patron of the Surrey Community Development Trust. These are the people who really do hug hoodies and give them practical alternatives; they look after these youngsters when they are being perfectly impossible. That is the only way in which to prevent them from ending up in prison. The star of my panel was a wonderful person from NACRO called Helen Edwards. We know Helen Edwards as the head of the National Offender Management Service in the Home Office—and one of the best things that the Home Office has done is to take her on to its team.
	We meet today a year after the noble Lord's report. I especially want to emphasise the issues around education and ask the Minister what he can do to make the rest be as good as the best. There are good examples, but so often there is apathy and disappointment. We had this with children in long-stay subnormality hospitals. I gave evidence to the report 30 years ago, and we finally got to the point where those children were thought of not as subnormal but as entitled to education. We have been working on looked-after children and children in care, and the Government have often said that children in care need particular help, so surely we should do more for education of children in secure accommodation. That is why this call to the Minister for Children, who is now part of the Department for Education and Skills, surely has merit.
	Lastly, and briefly, I refer to strip-searching, especially for girls. I ask noble Lords to look at the documentation around the treatment of girls who have been subject to sexual abuse. Children, especially girls, are very sensitive about their bodies and are developing their identity and working out their views on sexuality, but they have all their clothes removed, and if they do not comply they are forcibly put through a strip-search. That cannot be right or civilised.
	My final message to the Minister is that it is time to bring an end to the cost-shunting. As long as the Home Office pays, children will always end up in young offender institutions. Will the Minister consider a levy on social service departments? The social services should be looking after these children—but they are very expensive and difficult and, if social services do not get a report in on time and turn a blind eye, the Home Office picks up the tab. I want to Minister to levy the social services departments so that, instead of using hidden institutions as a free gift, they are encouraged to make a virtuous decision and put the child's interests first and not the inevitable interests of penal institutions.

The Earl of Listowel: My Lords, I thank the noble Lord, Lord Carlile of Berriew, and the Howard League for Penal Reform for this report. It makes the most depressing reading. Brutalisation of this kind for our most vulnerable and difficult children indicts us for neglect. Whether they are homeless, in public care or in custody, too often our troubled and troubling children are cared for by individuals, with many honourable exceptions, unequipped for the job and lacking appropriate support. Staff care very much about making a difference for children, but often they are not supported to do so.
	The Carlile inquiry highlights concerns about the mental health of juveniles in the secure estate. It is essential that these settings have greater access to forensic CAMHS—child and adolescent mental health services—if staff are to respect children and model good behaviour as the inquiry recommends. Consultation to staff groups and managers by CAMHS professionals can transform the quality of care provided. A consultant forensic psychiatrist recently referred to research on in-reach teams in Grendon Underwood prison. These teams were providing very little in terms of resources, but prison officers and governors said, "It's transformed the prison. The officers feel supported; they're able to cope with mental health because they have a community psychiatric nurse who talks to them".
	This afternoon I spoke with the manager of a local authority secure unit, Jon Banwell, who is also the chair of the Secure Accommodation Network. His is one of the very few units with access to a specialist child and adolescent mental health services. He said:
	"I believe that the Forensic CAHMS input is a vital part of our behaviour management service. The guidance and advice that our staff receive from CAMHS helps ensure that we give an individual child-centred response based on an awareness of a child's needs rather than focusing just on the immediate displayed behaviour".
	The Youth Justice Board's research of 2005, Mental Health Needs and Effectiveness of Provision for Young Offenders in Custody and in the Community, identified one-third of juveniles in the secure estate as having mental health needs. It highlighted the many other needs of these children and young people—and I note the presence of my noble friend Lord Northbourne in this regard. Some 48 per cent had difficult relationships with their peers and family member that would benefit from an intervention.
	The noble Lord, Lord Warner, in his influential 1992 report on staffing of children's homes, Choosing with Care, thoroughly endorsed the involvement of appropriate mental health professionals on an ongoing basis as an efficient way of making use of scant child and adolescent mental health provision. I have witnessed such consultations to staff in a children's home and spoken to managers of homeless hostels and head teachers about the benefits of such consultation to staff in terms of supporting the mental health of young people and relieving the stress on staff in daily contact with challenging children. I imagine that the Minister may well have had experience of that kind of multidisciplinary working when he was a social worker, and that he would agree that it is a key part of safeguarding the welfare of children and preventing the maltreatment highlighted in the Carlile inquiry.
	I warmly welcome the importance placed on CAMHS in Her Majesty's Government's national service framework and the significant investment that they have made in this area. Can the Minister say when all providers within the juvenile secure estate will have access to specialist forensic CAMHS? I apologise for not giving him notice of this question and appreciate that he may wish to write to me.

Baroness Murphy: My Lords, my contribution follows on very well from that of the noble Earl, Lord Listowel, as I want to address the same problem.
	About 50 per cent of children and young people detained in custody have a profound mental illness and a further 25 per cent have behavioural disorders. One in five young offenders was also identified as having a learning disability, with an IQ below 70—and at least half have profound educational needs as well. I would wager that it is the most behaviourally disturbed and mentally disordered who are subjected to physical restraints that the noble Lord, Lord Carlile, so ably described and which would be unthinkable to use with adults. I would wager that from my own experience of visiting with the Mental Health Act Commission those unfortunate children detained under the Mental Health Act in local authority institutions, where the relationship between the two issues was extremely clear. As the noble Earl, Lord Listowel, said, it is also true that these children and young people are far less likely to receive appropriate treatment if they are in custody than if they are not. Will the Minister explain why that is so? What are the Government's plans to raise the standards of access to child and adolescent mental health services to those at least of any other child outside the youth justice system?
	According to a report from the Healthcare Commission in November last year, primary care trusts are failing to provide adequate mental health care for all young offenders, making the task of reducing reoffending rates more difficult. It found that too many primary care trusts are failing even to meet their statutory duty to provide a health worker to youth offending teams; one-third are without a specialist mental health worker. I would not be so bold as to claim that effective mental health care at this point in their lives would necessarily reduce the 82 per cent reoffending rate for male adolescents aged 15 to 18, but I can be pretty sure that, without effective care, the offending and custody rates are not likely to go down.
	The Healthcare Commission found that services for 16 to 17 year-olds were gravely inadequate in many areas, and that:
	"In some cases, young people with serious mental [or] emotional health problems are facing waits of up to 18 months for treatment".
	This is before they even get into custody. With waits of that length, and with an average stay of nine months or so, they are hardly likely to get treatment while they are in custody.
	The consequences of doing nothing about this group are likely to be grave. One of the striking things about talking with adult patients in special hospitals and forensic units is the fact that so many have never lived outside an institution for longer than a few months in their entire lives. An extraordinary number of them have been in young offender institutions. It seems to me extraordinary that we do not at this point provide effective interventions that are more likely to influence their futures positively than are the sort of Victorian prisons that we provide for them. No one is saying that these children and youngsters do not need containment, boundaries and certainties, or that they should be allowed to run wild and be destructive. They need containment, boundaries, a caring regime and interventions from specialists who understand about providing a different sort of care from the sort that they are getting.

Lord Avebury: My Lords, it is a pity that last week's UNICEF report, which put Britain at the bottom of the league table of 21 industrialised countries for child well-being, did not look at the number of children coming into the criminal justice system and the number locked up. The former head of policy at the Youth Justice Board, Jon Fayle, resigned because the Government would not support its policy of reducing youth custody. Rod Morgan, the former chair who resigned a week before, protested that government targets for prosecutions shifted minor offences which used to be dealt with informally into an overstretched criminal justice system and that work to improve regimes in young offender institutions was being undermined. That is the elephant in the room in this debate.
	Spending £280 million a year on locking up young people produces an 80 per cent plus reoffending rate, and the money should be largely redirected into community measures for all but the most persistent or dangerous offenders. The number of young people in custody could be reduced by two-thirds, saving £70 million a year. As the noble Baroness has just said, half of the 3,000 under-18s in YOIs suffer from psychiatric disorders; many vulnerable children are placed far away from their families and it is becoming harder to do any useful work with any of them. In this unfavourable environment, force is all too often used as a means of control, causing injuries, as we have heard.
	My noble friend mentioned Hindley, where force was used on 236 occasions in the six months prior to the chief inspector's visit last August. A number of children there suffered injuries as a result of C&R, including, as he mentioned, three with broken wrists. Her recent general inquiry into young people in custody found that half the boys in Hindley had been restrained, and at Brinsford it was more than a third. What is the Minister doing to see that restraint is used as a last resort, as the YJB recommends?
	In the STCs, recent inspections at Medway and Oakhill show a reduction in the use of restraint, but at Hassockfield the withdrawal of the lethal "seated double embrace" led to an increase in the use of handcuffs. Why is there this difference between one institution and the others? The main technique now used in STCs relies on the infliction of pain. My noble friend said that that was unlawful. In the Minister's opinion is it within the law to inflict pain deliberately on these young people as a means of control?
	In an extreme case at Rainsbrook STC nearly three years ago, 15 year-old Gareth Myatt died as a result of restraint. The inquest last week heard about 34 other potentially lethal incidents where children subjected to the "seated double embrace" had incurred serious incidents or complained of being unable to breathe. That technique was discontinued but why was there not a review of the safety of restraint procedures generally as the Home Office promised in 1998? Should there not be an accelerated procedure for inquests on deaths in custody so that the lessons learnt from these dreadful incidents are applied as soon as possible?
	The failure to keep uniform records of the use of restraint, including the ethnicity of the subjects, throughout the secure children's estate is deplorable and must be remedied. Clearly, the YJB's code of practice, intended to be,
	"an agreed set of principles for the use of control methods in all settings where children are cared for",
	needs further development in the light of my noble friend's report. For some, it may be a matter of life or death.

Baroness Stern: My Lords, I am grateful to the noble Lord, Lord Carlile, for arranging this debate. I assure him that we are not the least bit fed up with hearing his voice. He is a very busy person with many important commitments. We are very fortunate that he has dedicated so much of his time and energy to this relatively small group of unfortunate, unloved, unhappy and troublesome children. Unhappiness is a theme that runs through this whole sad story of our policies on children in custody. I have no doubt that we shall look back on these few years and wonder how we sunk so low in our treatment of some of our saddest children.
	The system is reprehensible both in its abuse of children's rights and its ineffectiveness. It is a deplorable use of public money. How did we get into such a situation? I can only assume that it is a reflection of the Government's strange faith in punishment as the way to solve social problems. This quite ill-founded belief that punishment is the way to solve social problems must have shaped the Government's choice of institutions that have been given the job of holding and trying to rehabilitate these damaged children, because as we heard these institutions are based on punishment.
	These institutions hold two sorts of children. Some of them are minor offenders on the fringes, whose behaviour ought to be easily containable in the community. I know a family whose boy got a three-month sentence on his 16th birthday for not keeping his appointments with his social worker. However, most of these children fit into the category of those whom the inspectors for the Commission for Social Care Inspection found at Medway secure training centre; a place, incidentally, that seems to be doing the best it can. The children there presented a complexity of need. They had,
	"attachment disorders, post-traumatic stress disorder, suicidal and self-harming behaviour and in increasing numbers, a history of multiple unsuccessful placements in mainstream local authority care".
	These are incredibly damaged children, failed by other services and full of unhappiness and rage.
	Home Office Ministers tend to respond to questions about the treatment of these children in custody by reminding the House that some of them have committed very serious offences. I hope that the Minister will refrain from doing so on this occasion because indeed they have. We know that they have. This is what children who have been reared in violence and neglect often do. But we are holding these children in places that are completely inappropriate to their needs. Would anyone want to put a child with such complex needs, and with problems which need to be sorted out if the child is to have any chance of a better life and if future violence is to be prevented, in a place such as Oakhill Secure Training Centre? According to the latest inspection report, of June 2006, 75 children are there, but there is only one qualified social worker on the staff. Children's access to underwear and books is limited as part of the rewards and sanctions system. Young people who are on basic privileges for one or two days are subject to a ban that prevents them leaving their unit, so they get no time in the fresh air. Not surprisingly, five employees leave every month; in one month, 16 staff resigned their posts.
	Does the Minister have any comments on the suitability of Oakhill Secure Training Centre, and does it still restrict the amount of underwear and books that children can have? Have the Government any plans for a radical reform of the system, or was the report in today's Guardian to which the noble Lord, Lord Carlile, referred—that Mr Brown favours moving youth justice to the Department for Education and Skills—just a rumour?

Lord Ramsbotham: My Lords, I join all those who have congratulated the noble Lord, Lord Carlile, on obtaining this debate. I must declare an interest as a member of his inquiry, which was a great experience. I am very glad that his voice lasted out for his very powerful opening speech.
	I am also very glad that my noble friend Lady Stern introduced the question of punishment, because one of the things that worried me most about the Government's attitude to the criminal justice system was when I heard that the number one priority of the Probation Service had been changed from one of aftercare to one of punishment. It seemed to me to mark a very dangerous change of direction, one that was mirrored in an article in yesterday's Observer which said that there was a very definite rift between charities, the Youth Justice Board and the prison inspectorate about what they describe as a line that has been crossed in the treatment of young people in prison, and Government, who are increasingly tending to criminalise young people.
	I should like to make my remarks in the context of two events that are currently happening. The first is the inquest into the death of Gareth Myatt, referred to by the noble Lord, Lord Avebury, during which the previous chief executive of the Youth Justice Board, Mark Perfect, said that this death was a disaster waiting to happen—and so it was a disaster that happened. I disagree profoundly with that second statement. It was a disaster that was waiting to happen but it was one that should not have been allowed to happen.
	That brings me to the second part of my context, which is the very sad circumstances around the resignation of Professor Rod Morgan, the chairman of the Youth Justice Board. This is where my questions to Ministers come, because the inquiry carried out by the noble Lord, Lord Carlile, was responded to not by the Government but by the Youth Justice Board. I am surprised that if the Government take it so seriously, they did not respond. I can only assume that they were behind the responses that were made. Rod Morgan has been quoted as saying that during his three years as chair of the Youth Justice Board, he made it clear—mostly in private but occasionally in public—that he was not happy with the direction of youth justice policy.
	It is the duty of the Youth Justice Board independently to advise Ministers. Recommendation 19 of our inquiry stated:
	"Restraint should never be premeditated as it then becomes a punishment, not an intervention to secure safety".
	The answer was:
	"We do not accept this recommendation".
	Recommendation 20 states:
	"One certified physical intervention technique that is safe for children should be developed as a matter of urgency, and should be used across the secure estate".
	The answer was:
	"We do not accept this recommendation".
	Recommendation 21 states:
	"The YSB should oversee the use of the disciplinary system so that it is rigorously applied when an allegation is made against a member of staff".
	The answer:
	"We do not accept this recommendation".
	My question to the Minister is: was this the advice that was given to Ministers by the chairman of the Youth Justice Board, or was it a deliberate recommendation response by Ministers alone?

Lord Dholakia: My Lords, I thank my noble friend Lord Carlile of Berriew for this debate. He led the independent inquiry for the Howard League for Penal Reform into the use of strip-searching and physical and solitary confinement of children in penal custody. He is therefore well qualified to address the issue. I congratulate the Howard League for the initiative that it has taken on this matter. The report is compulsory reading for all those interested in penal reform. Add to that the contributions of all noble Lords who took part in this debate. They all point to a serious cause of concern, and I look forward to the Minister's response on the issues raised. On this matter, glossing over will not do.
	My noble friend Lord Avebury mentioned the UNICEF report. We need to ask what exactly is happening in our penal institutions. Overall, there are nearly 11,000 under-21s in prison, and at least 300 of that number are held in young offender institutions. The number of children has more than doubled since 1993. There is a worrying trend that, despite a decline in the number of children convicted or cautioned, we now lock up more children than anywhere else in Europe. We need to address why our justice system has produced that anomaly.
	We have figures about physical force used against children—15,512 times during a 21-month period in England and Wales. In commercially managed service training centres, physical restraint has been used over 1,200 times, despite the fact that they hold only 190 children who are predominantly 14 and 15.
	I am aware that the Youth Justice Board is responsible for commissioning secure places for children and young persons under the age of 18. Some progress has been made in commissioning new facilities, improving regimes and safeguarding. That is welcome, but we need it to undertake vigorous systematic monitoring of physical control in care and the system of physical interventions used in such centres. There is ample evidence that these institutions did not keep central records of how many children had been injured in restraint incidents.
	We sentence far too many people to prison and children are no exception. It is clear that the success or failures of imprisonment are measured by the reoffending rates. As far as children are concerned, this is nearly 80 per cent. The facts are there for all to see. Prisons hardly work for children. One of the points raised in the report is the need for a holistic approach. We all know the issues identified: exclusion from schools, previously spent time in care, alcohol and drugs problems, pregnancy, previous involvement in criminal offences, and physical and mental abuse.
	If there is one outcome I am looking forward to in this debate, it is an assurance from the Minister that all the recommendations of the report of the noble Lord, Lord Carlile, will be seriously considered and implemented by the Home Office. In addition, we should extend the provisions of the Children and Adoption Act 2006 to involve the Children's Commissioner in monitoring and delivering children's services in our secure establishments. It is time that he played an important role in that respect.
	It cannot be beyond the capacity of the Home Office to ensure that children are kept in a healthy environment, that they are safe and that prisons make a positive contribution towards their welfare and economic well-being. The message must be clear and unequivocal. Every child matters. Children must be protected from maltreatment and receive safe and effective care.

Viscount Bridgeman: My Lords, I join noble Lords in congratulating the noble Lord, Lord Carlile, on securing this debate. I hope to spare the noble Lord's blushes, but this report will go down in the annals of child custody in prisons as a seminal work, or a benchmark, as my noble friend Lady Bottomley said, in an impressive contribution that drew much on her personal experiences. I urge the Government not to be deflected in any way from taking action on the demanding observations made by the noble Lord and his colleagues.
	There was, as it were, a curtain raiser for this debate in the Oral Question tabled by the noble Baroness, Lady Stern, on 29 January. The questions came from all round the House and there were some demanding and informed interventions. While we have every sympathy with his position, some of the Minister's answers were distinctly guarded. For example, in reply to a question on segregation by the noble Lord, Lord Low, the Minister replied that this was "not highly desirable". Can he go a little further? There are seven recommendations in the report and on this matter, if on no other, the Government's response needs to be much more robust.
	I am sure that the noble Baroness, Lady Stern, will want more reassurance regarding her supplementary question on that day, which reminded the Minister that restraint was still widely used. That has been covered by the noble Lord, Lord Carlile, who gave devastating statistics. The Minister admitted that the practice was still widely used, which I understand to be the case. The five recommendations in the Carlile report were specific and demanding. Can the Minister go further than the slightly defensive language he used in response to the noble Lord's question? Phrases such as "operational requirements" are, frankly, not reassuring. Can the Minister convince the House that these recommendations set out in, perhaps I may say, uncompromising language are being taken seriously?
	In the week before the Recess, the House expressed its views in the strongest possible manner on the initiative of the noble Lord, Lord Ramsbotham, inthe vote on whether to include the Prison Service in the ambit of the Corporate Manslaughter and Corporate Homicide Bill. The inclusion of that amendment in the Bill would be a huge step forward for greater transparency and accountability within the prison system and I hope that my noble friend Lord Hunt will have some success in persuading the Government to include that measure when the Bill returns to this House. It would have an indirect and direct effect on the matters that are under discussion tonight.
	My noble friend Lady Bottomley has referred to "bottom-of-the-pile" children who fetch up in the courts—sometimes unable to read the oath. Thereis a lower rung than that. The noble Lord, Lord Ramsbotham, in a moving speech, referred to speech and learning difficulties. Such children often cannot even speak and have been given no start at all.
	This House must be indebted to the Howard League for commissioning this report and to the noble Lord, Lord Carlile, and his committee for doing such an excellent and unequivocal job in holding the Government to account. Many of the committee's recommendations are radical. The Government must not hide behind such phrases as "operational requirements" and so on. Fresh root-and-branch thinking is required. I concede that the environment of the Oral Question of 29 January was not an easy forum for the Minister. Tonight we would like to hear evidence that the Government are really, and I mean, really, acting on the recommendations of the Carlile committee. I hope the House will see to it that this report and the issues it has raised will not go into the long grass or, as the noble Lord, Lord Carlile, said, be the subject of a very gentle wake-up call, and that we will have further opportunities to monitor the Government's response. The report deserves better, as do many of those unfortunate children whose treatment has been so ruthlessly exposed.

Lord Bassam of Brighton: My Lords, I start with my customary thanks to the noble Lord, Lord Carlile of Berriew, for his very valuable report, which, despite what some noble Lords may think, the Government have taken very seriously. They continue to take it very seriously and no doubt, if the comments of the noble Viscount, Lord Bridgeman, and the usual trenchant remarks of the noble Baroness, Lady Stern, are anything to go by, your Lordships' House will not easily let us ignore it.
	It is to the credit of the noble Lord, Lord Carlile, and of everyone who has taken part in the debate that these issues are always taken very seriously by your Lordships' House. I hope that my comments this evening will go some way to reassure contributors to the debate that, although they might not agree with us, we do at least take these issues seriously and we listen and try to learn from previous experience.
	Several noble Lords referred to some of the tragic instances in the youth custody arena and, in particular, to the tragic death of Gareth Myatt, whose inquest is currently in progress. Tempting though it is, it would be inappropriate for me to comment on that inquest, and we should all await the coroner's inquiry and the outcome of the jury's deliberations. The comments that will no doubt flow from the inquiry will be of great value to the department and to the Youth Justice Board and others in fashioning a response and in understanding better the circumstances surrounding Gareth Myatt's tragic death. It is vital that we respect that process.
	I shall begin by giving my understanding of the problem that faces the custodial part of the youth justice system and those who work in it. I shall then go on to describe the measures that the Government have taken and those that we have in hand to safeguard children and young people in custody and to ensure that their behaviour is managed effectively and humanely. In doing that, I shall try to respond to some of the points raised during the debate. I do not expect to cover all the questions that were asked, but I assure noble Lords that I will provide them with a fuller response to the points that I have been unable to cover than I would have been able to give from the Dispatch Box.
	For most of those who go there, custody is the end-point of what we all accept is a lengthy journey through the youth justice system. Except for the small minority who, out of the blue, commit very serious crimes, most of those going into custody will have been the subject of several community interventions designed to help them to change their lives and to stop offending. They end up in custody because, for one reason or another, as all noble Lords who have taken part in the debate recognise, those interventions have not worked.
	That may sound like a simple case of failure on the part of the system but, when one considers the complex problems that many of these young people have, it is really not at all surprising. Study after study has shown a similar picture: family breakdown; inadequate parenting; lack of schooling; low educational attainment; and alcohol and substance misuse. By any standard, that is a formidable combination of difficulties. It is regrettable but, as I say, hardly surprising that community youth justice interventions do not always provide the answer.
	What is clear is that these are neglected or, at best, inadequately cared-for young people whom society as a whole has failed. Sending them to custody is the last resort, when the courts have decided that other types of intervention have not succeeded and are not going to succeed.
	I do not wish to suggest that custody is the solution to all those problems—far from it. At best, it provides the community and the young people themselves with some respite or a breathing space. But it should be recognised that for very disadvantaged children such as these, custody can have some positive benefits. It can remove them from a bad or unsafe environment, and it provides education and healthcare—not infrequently to higher standards than the young person has previously experienced. However, unavoidably, custody brings together a group of volatile young people whose behaviour is very difficult to manage. Some of them are very large and strong; some are aggressive; and few have any understanding of discipline or the need for self-discipline. Without the most careful management, the way that they behave will pose a risk to themselves and to others. Managing that behaviour will never be easy and, however well it is managed, there will be occasions when it is necessary to use physical intervention to prevent a young person harming himself or herself or others.
	So we are asking those who work in under-18 establishments, whose essential task is to care for and support these challenging young people, to take on the great responsibility of managing their behaviour, which sometimes involves some risk of injury to themselves. It is right that our concern should focus on the welfare of the young person, but we also owe it to the people who do this difficult job to recognise how much is being asked of them. It is essential that they receive clear guidance and are properly trained to undertake it. But I wonder how many of us, however good the training and the guidance, would have been able and willing to undertake this demanding and often unrewarding work.
	What are we doing to ensure that restraint, strip-searching and single separation are used as sparingly as possible? That has been a theme of this debate. The Youth Justice Board's code of practice: Managing Children and Young People's Behaviour in the Secure Estate, which was published in February last year, set the framework for a great deal of work in this area. I will give some examples.
	Hassockfield secure training centre is currently piloting the use of a technique known as therapeutic crisis intervention to help staff defuse tense situations without having to use physical intervention. Restorative justice approaches are being piloted at Ashfield young offender institution, and a review of restorative justice work throughout the secure estate is due to report shortly.
	The behaviour management code of practice has been integrated into the Youth Justice Board's effective regimes monitoring framework, and each establishment that is not already fully compliant with the code has an action plan for achieving full compliance. The Youth Justice Board is closely monitoring implementation of those plans.
	We have recognised—this point was referred to by a number of noble Lords—that statistical data that we collect on the use of restraint can be improved. A set of common definitions and new accounting rules have been agreed to enable statistical data to be collected in a way that allows clearer comparisons of practice across the three sectors of the estate. The new data reporting and recording system will come into effect from April.
	The Youth Justice Board is working with the Children's Workforce Development Council to agree core competencies for all staff working in the secure estate, so that we can raise standards of care. A review of family liaison work in relation to young people in the secure estate is currently under way, and that, too, is due to report shortly.
	That is a snapshot of just some of what is being undertaken. I have heard it suggested that the Government have not taken these issues seriously enough. I hope that that brief resumé at least demonstrates and goes some way to convincing those who carry that view that we are very serious indeed about these issues.
	I know and understand from previous debates and Questions on this subject—to some of which I have had to respond—that there are concerns about the use of handcuffs in secure training centres and the sensitive issue of the practice of strip-searching girls on arrival in custody. As far as handcuffs are concerned, practice varies. Two of the secure training centres—Medway and Rainsbrook—report that they do not use them. A third centre—Oakhill—to which the noble Baroness, Lady Stern, referred, has a policy of reducing the use of handcuffs and reports that it has not used them since April last year. Hassockfield continues to use handcuffs, but reported use has reduced considerably and the centre is piloting the use of "soft cuffs"—made from Velcro. No one likes the idea of applying handcuffs to young people. If it is possible to reduce their use, that is clearly a good thing. Clearly we shall have to give further consideration to that. Perhaps the noble Lord, Lord Carlile, could give some further consideration to it. His report did not focus in a major way on that, but I know that he is very concerned about it. I can also tell your Lordships that the Youth Justice Board is looking at the use of handcuffs more generally and hopes to report on that this year.
	Young offender institutions and secure training centres, as a matter of policy, conduct a full search—a strip-search—of all young people arriving in custody. Again, that is not something we would wish to subject a young person to if it was not absolutely necessary. But we believe that it is necessary to prevent weapons and drugs being brought into establishments. The noble Lord's report suggested that that was not the practice in secure children's homes. But it is important to note that secure children's homes are much smaller and take younger children. We cannot simply replicate practice that may be workable there in establishments taking large numbers of more volatile and physically mature 17 year-olds. We are, in effect, being criticised for placing too much emphasis on security but if, heaven forbid, a trainee or member of staff were to be seriously injured by a weapon smuggled into an establishment, the criticism from every quarter would be that security had not been tight enough. We have the difficult job of striking a balance that achieves the highest level of safeguarding. Weighing too heavily on either side can, of course, lead to increased risk. As I said at the outset, these are not easy or straightforward issues.
	Many questions were asked; I shall try to run through some of them quickly. The noble Lord, Lord Carlile, asked about the change of departmental responsibility. The cross-government arrangements in place around Every Child Matters and Youth Matters ensure that the DfES, the Home Office and the Youth Justice Board work together to support young people and prevent offending, whether they are in or outside the youth justice system. The current view is that the system works well, and we have no plans to change the division of responsibilities.
	I was impressed by the contribution of the noble Baroness, Lady Bottomley, and welcome her to this debate. The suggestion of a levy on social services was interesting and potentially attractive. There have been some discussions between the Home Office and the DfES about it, but before we could introduce such a levy we would have to be clear that a workable process was in place to enable funds to be transferred quickly and effectively. It is not something we have ruled out, however.
	My time is up. There are many other questions I would like to respond to. I do not have the time to do so, but I repeat my undertaking to respond to those points that I have not managed to cover. I apologise in particular to the noble Lord, Lord Avebury, who gave me notice of his questions. I have full responses which I shall ensure are prepared for him.

Lord Carlile of Berriew: My Lords, time has run out. I simply thank all noble Lords who have taken part in the debate. It is not a debate of last resort; I suspect that it will be a regular resort in the future. I thank all noble Lords, and especially the Minister for his response.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will give what advice I can tonight, but I also offer to write further to the noble Lord—and other noble Lords—as he has raised some interesting points that will inform later debate on the Bill.
	It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact that we are opening up the role currently played by the responsible medical officer to a wider group of professionals. We debated that issue just before the dinner break. Because of that change it no longer makes sense for the definition of medical treatment to refer to care, habilitation and rehabilitation "under medical supervision", as "medical supervision" in this context of a definition of treatment could be interpreted as requiring the supervision of a registered medical practitioner. As we have made clear, we want medical treatments that fall within the ambit of the Act to go beyond those that can be provided by or supervised by doctors.
	We are also taking the opportunity to make explicit that the definition of medical treatment includes psychological intervention. Practical examples of psychological intervention might include cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that arise from a range of physical conditions that can then give rise to mental disorders. Clearly, many of those disorders will be transitory and will pass with the physical disorder. So the question of using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my understanding is that A&E departments are well used to checking for instances of, for example, urinary tract infections and other common problems, which may potentially cause mental disturbance in older patients. If such an infection is found, treatment will be offered accordingly. But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in the Mental Health Act, it is clearly important to consider whether their mental health problems are a direct consequence of a physical ailment. The fact that the mental disorder can be expected to be alleviated by tackling the underlying physical condition may be decisive in deciding whether to use the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a matter of poor practice rather than the law.
	Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act. It surely must depend on the particular circumstances of the case, the severity of the mental health problems the patient is experiencing, the persistence of the symptoms and the risk to their own safety and that of others. Our starting point is that if the person's mental condition, whatever its cause, is putting them or others at risk sufficient to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act being used.
	As regards case law, I have been advised that in the 1995 case of B against Croydon Health Authority medical treatment for medical disorders can include a range of acts ancillary to the core treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to draw rigid lines and say that treatment for an underlying physical condition could never legitimately be considered as part of treatment for mental disorder.
	I turn to Amendments Nos. 10 and 75, which are equally interesting. It is clearly very important to ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness because, although we do not think that the legislative framework is wrong, she has identified matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care institutions. We need to do very much better if the poor practice that she identified is in fact happening in either the NHS or care homes.
	The Mental Capacity Act has established in statute a clear and robust framework for actions and decisions to be taken for people who lack capacity to take decisions for themselves which would otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is not appropriate in any given place.
	On the relationship between medical treatment, mental health treatment and the confusion that the noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will take that back and look at it to see whether issues need to be confronted. As I said, I shall write to him. Our initial reaction is that we think that the law is clear. The Mental Health Act provides for compulsory treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind for people without capacity to consent to it. However, as I said, I shall look further at the matter and, in the first instance, write to the noble Lord.

Earl Howe: moved Amendment No. 13:
	After Clause 8 , insert the following new Clause—
	"Three month rule for second medical opinions
	In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for "three months" substitute "28 days"."

Earl Howe: My Lords, we return to an issue that is viewed by all sections of the mental health community as being of major significance in the context of treating individuals under compulsion. It relates to the period following an order for compulsory treatment before a second medical opinion is required.
	To recap on the background, the 1983 Act entitles the medical practitioner to use medication to treat a patient for his or her mental disorder without consent—and, indeed, in the teeth of the patient's opposition—for three months. Before the end of that period, Section 58 of the Act requires a second medical opinion to be sought from a doctor appointed under Part 4 before the treatment can continue. A second opinion is mandatory under two scenarios: either where the patient does not give consent or where he lacks capacity and the responsible clinicians consider that treatment should be given.
	The issue addressed by the amendment is very simple: three months of being treated without consent, or without the capacity to consent, is too long. Medication for mental illness can be dangerous and damaging to the person taking it. It involves powerful and potentially toxic chemicals that have significant adverse side effects. A patient taking these drugs can put on weight, contract diabetes, have major problems with his eyesight, become impotent, become extremely lethargic and exhibit involuntary movements of the limbs that are highly embarrassing. This medication is no picnic.
	The whole business of prescribing psychiatric medication is fraught with pitfalls. Errors of judgment about dosages and what drugs are right, and so on, are not uncommon. The off-label prescribing and administering of harmfully high dosages are real and frequent problems. They can have a serious impact on the patient's physical and mental health. Moreover, as the noble Baroness, Lady Finlay, pointed out in a previous debate, a patient's diagnosis can change over three months. Medication and dosages may need to be changed to take account of that. For all these reasons, three months is a long time not to have a second opinion. As we heard from the noble Lord, Lord Patel, in Committee, the Mental Health Act Commission has been absolutely clear about this. It does not believe that the current Act gives enough protection to patients; nor, come to that, did the Government when they drew up the 2004 draft Bill, under which there would have been the tribunal authorisation of compulsory treatment after 28 days. It is therefore alarming that the Government are now opposing this change. The Minister's main argument is that three months are needed to allow the person's condition to stabilise. I cannot believe that he advances that as a serious proposition, when only a few months ago the Government were arguing for a review after 28 days. He will know, I am sure, that new medication is available nowadays and that the guidance on it is quite explicit about the length of time needed for it to be effective. In almost all cases, this is a fortnight. In the case of Clozapine, it is a month.
	We would do well to heed the words of the Joint Committee on Human Rights, which reported recently. It pointed up the comparison between ECT and medicines. Unlike medicines, any administration of ECT requires an immediate second opinion. The justification for this was that ECT is seen as a more controversial treatment. It said:
	"There is now a recognition that the effects of some psychiatric drugs may be as unacceptable to patients as ECT, and that the likely efficacy of a particular antipsychotic medication may be assessed within one month rather than three ... Three months is a long time to be in receipt of compulsory psychiatric treatment without the opportunity for review and supervision of the responsible clinician's decision to impose that treatment, and we consider it is doubtful whether the Government's obligation under Article 8 to provide effective supervision and review of treatment without consent is discharged by such a long waiting time".
	That was the committee's conclusion. The issue for the committee was whether the three-month delay allowed for in the current Act is a breach of Article 8, and, if it is, whether that breach can be justified as being proportionate to the aims of reducing the risk posed by a person's mental disorder and of improving their health. The committee reached the view that the justification for the provision was "doubtful". I put it to the Minister that this opinion by the committee sets the seal on the whole issue. The law as it stands is not right and we need to change it. I beg to move.

Earl Howe: My Lords, I am naturally disappointed by that reply although I thank the Minister for responding so fully. Feelings run fairly high in the mental health community about this issue and I did not table the Committee amendment again lightly. The new ingredient in the pot since the Committee stage is, of course, the report by the Joint Committee on Human Rights. The Minister kindly undertook to look at that and I welcome his assurance.
	There is provision in the 1983 Act to reduce the period of time before a second opinion is required, which indicates to me that the then Government had at least an ambition to bring that about; and, as we have heard, the Government themselves favoured a 28-day period in the 2004 draft Bill. I do not think we can ever afford to forget the potentially serious affect that some of these medications have on patients.
	It may also be worth bearing in mind that in many of these cases the responsible clinician, once the Bill becomes an Act, may well be a nurse—someone who is not a doctor. There may be no doctor or psychiatrist involved until the SOAD provides his or her report. Those are real changes that will arise out of the Bill. I do not think that it is right for us to proceed as we have in the past and accept the three-month period as still necessarily the right one. Nevertheless, at this hour, it is right for us to move on. I shall reflect carefully on what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Baroness Murphy: moved Amendment No. 14:
	After Clause 8 , insert the following new Clause—
	"CHAPTER 1A Treatment safeguards
	Capacitous patient's right to refuse electroconvulsive therapy
	( ) In section 58(3) of the 1983 Act (treatment requiring consent or a second opinion) after paragraph (b) insert "; or
	(c) subject to section 58A (as inserted by section (Electro-convulsive therapy: children)), in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard in particular to the likelihood of its alleviating or preventing a deterioration of his condition it is necessary for the treatment to be given.""

Earl Howe: My Lords, like the noble Baroness I very much welcome the government amendments, so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I do.
	On the issue of urgent treatment, in Committee I raised some questions of interpretation over Section 62, which sets out the circumstances under which urgent treatment may be administered. This is defined as treatment which is,
	"immediately necessary to save the patient's life; or.. which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or... which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or... which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others".
	With regard to ECT, I ask the Minister to clarify the way in which this section should be read, bearing in mind that it is known that for some patients ECT is not only hazardous but can also result in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible as urgent treatment when the patient's life was not at risk was most unsatisfactory. It is perhaps helpful to put part of the Minister's reply to me on record. He wrote to me to say:
	"Whilst I accept that there is some research that concludes that, for some people, their treatment with ECT has resulted in irreversible physical, cognitive and/or psychological side effects, there is no established consensus in psychiatry that this will happen—or is even likely to happen—with all patients or in all the circumstances that ECT is provided. For any given patient, a clinician could conclude that the patient's treatment with ECT was not likely to have unfavourable irreversible physical or psychological consequences, and would not entail a significant physical hazard to the patient. Therefore the Government is of the view that it is possible if the right clinical conditions apply for the approved clinician in charge of the treatment of a patient subject to detention to treat that patient with ECT under the circumstances described at Section 62(1)(a), (b), (c) or (d)".
	While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a result of it, but he will know that there is now a widely held consensus of views within the medical community about ECT that it is per se potentially hazardous and capable of having irreversible side effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is true that as a general proposition ECT is now regarded as an inherently hazardous form of treatment, I do not see how it is possible for the Government to be comfortable in asserting the view that they have about the interpretation of Section 62.
	It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to consent. I believe that this is one clear instance in which we in Parliament have to listen hard to what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated what she said in Committee, that she,
	"cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment".—[Official Report, 15/1/07; col. 475.]
	That view reflects the consensus of medical opinion to which I referred.
	We need to remember, too, that ECT will hardly ever be the only emergency treatment available for a patient. In comparison with other treatment options and knowing what we do about it, it is really very difficult to imagine how it could ever be the emergency treatment of choice, especially in circumstances in which a patient's life was not actually at risk. Therefore, I urge the Minister to look at this issue again.
	In Amendments Nos. 30 and 31, the Government have implicitly accepted the case made in Committee about ECT—that it represents a uniquely invasive and distressing form of treatment. That acceptance now needs to be carried over into the provisions relating to urgent treatment.
	I should like to add a couple of points of emphasis to what the noble Baroness said about ECT and children. I fully support Amendment No. 15. I believe that a unanimous view was expressed in Committee on this issue. Although ECT is rarely used on those under 18, it represents a particularly hazardous form of treatment for that age group. We now know that the adolescent brain is still changing and developing in its structure. Synaptic pruning, which is believed to be essential for fine tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to the frontal cortex, which are essential for such functions as response inhibition, emotional regulation, analysing problems and planning. NICE's guidance on ECT almost certainly had these findings in mind in stating that the risks associated with ECT may be enhanced in children and young people.
	It is worth pointing out that the amendment does not say that ECT should never be used on children or young persons. It allows for the kind of exceptional situation which many speakers in Committee acknowledged needed to be allowed for, when ECT may be deemed appropriate. But it would put in place what I and others believe are appropriate safeguards for this particularly vulnerable group of mental health patients, whether or not they are detained formally. I hope that the Minister will agree to think again about this.

Baroness Royall of Blaisdon: My Lords, we have had an excellent short debate on these matters introduced by the noble Baroness, Lady Murphy. I am very grateful for the warm support—the partially warm support—of noble Lords on these amendments. In Committee, my noble friend Lord Hunt indicated that we would consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations, and we have done just that.
	We accept that there is a persuasive argument for providing that a patient should have their refusal respected when they are capable of understanding the nature, purpose and likely effects of being treated with ECT and refuse to consent to that treatment. Your Lordships will note that our new Section 58A is subject to the urgent treatment provision in Section 62 of the Act. I will return to that later.
	Amendment No. 15 also proposes a new Section 58A; for ease, I will refer in future to the Government's new Section 58A, or new Section 58A of Amendment No. 15. I believe that the Government's amendments achieve all that is in Amendment No. 14, tabled by the noble Baroness, Lady Barker, but with some additional elements. Our amendment is in line with Sections 57 and 58 in that they do not make any distinction based on the age of the patient. With regards to a patient who is capable of understanding the nature, purpose and likely effects of ECT and agrees to being treated with it, we will require the approved clinician in charge of the patient's treatment to certify that the patient is so capable and has consented to the treatment before it can be given. Similarly, Amendment No. 31 provides that the Government's new Section 58A will be subject to Section 60.
	There is an important difference of language between Amendments Nos. 30 and 14. The latter requires a SOAD to certify not merely that treatment is appropriate but that it is necessary. In practice, there may be little difference. Generally, ECT will not be appropriate except where it can also be said to be necessary, but to make the test one of necessity in all cases would not be welcome to those patients who actually have a preference for it over other methods of treatment. A preference for ECT may be known from previous episodes of treatment or from an advanced statement. The Mental Capacity Act provides for the making of an advanced decision to refuse treatment.
	Under the Government's new Section 58A, a valid and applicable advanced decision to refuse treatment with ECT must be respected where the patient lacks the capacity to consent at the time the treatment is being proposed. If a patient has granted a lasting power of attorney and that power is made in such a way as to allow the attorney to take decisions on the person's behalf about relevant treatments then, where that attorney refuses consent to the treatment, that refusal must be respected as if the patient had capacity to consent but was refusing to do so. The situation would be the same in the unlikely, but not impossible, circumstance where the Court of Protection appointed a deputy with authority to refuse treatment on the patient's behalf. It is also the case that the Court of Protection or another court with appropriate jurisdiction—for example, with regard to children—can decide that treatment should not be given to a patient who cannot consent to it. Our provision deals with all these matters expressly and I think that Amendments Nos. 14 and 15 would be more comprehensible if they had done likewise.
	We have considered Amendments Nos. 15 and 16, which respectively address additional safeguards in relation to ECT for patients under 18 and limitations on the provision of urgent treatment with ECT. My noble friend Lord Hunt said in Committee that the Government would also consider these matters further. We have given much thought to them, but I must say that there are many complicated issues to which we need to give further thought.
	Amendment No. 15 provides for additional safeguards for patients under the age of 18 for whom ECT has been proposed as a treatment for their mental disorder. There are complicated issues of clinical practice and law here and I regret that we still need more time to get this very important aspect of the need for specific safeguards for children who are to be treated with ECT absolutely right before we respond. Some of the complications are illustrated by the noble Baroness's amendment. We need to be sure that we do not restrict clinical practice to the point where clinicians will be denied a legitimate intervention to protect very ill children for whom ECT is, very exceptionally, the best option. We also need to be careful in deciding to whom we give rights to make decisions about the treatment of a child who cannot consent himself or herself.
	Amendment No. 15 would provide that where the patient under 18 was incapable of consenting to ECT, a person with parental authority must first consent to the treatment being given, unless there was a court order that the treatment be given. We are not convinced that the right approach is to provide that a parent must first consent before a SOAD can authorise treatment or, failing that, that a court must make an order for the treatment to go ahead. We accept that a child patient who is incapable of consenting to ECT should be provided for in such a way that a refusal to that treatment can be made on their behalf. I would suggest that the courts already provide the right arena to consider these issues.
	I hope that this gives noble Lords a flavour of the very difficult issues with which we are still grappling. I do understand the concerns expressed in relation to children and young people but I cannot agree to the sort of composite amendment suggested by the right reverend Prelate. However, I can assure noble Lords that the Government will return to these matters when the Bill is considered in another place.
	The Government amendment provides that Section 58A would be subject to Section 62. We will consider the criteria that must be met for urgent treatment with ECT. Amendment No. 16, by amending Section 62, would restrict the provision of ECT to detained patients without a SOAD certificate in urgent situations to those circumstances where it was required immediately to save a patient's life. In the previous debate in Committee, my noble friend Lord Hunt expressed concern that that was too restrictive. I am concerned that the amendment will prevent a patient whose need is not yet life saving, but whose condition, as it is, risks their suffering irreversible effects if treatment is not provided urgently.
	I understand the concerns behind the amendment and I share the desire that a provision for the urgent treatment of a patient without a statutory second doctor's approval should not be used to bypass the usual provisions for a safeguard that requires a capable patient to give consent and requires certification of a second-opinion appointed doctor when the capability of giving consent is lacking. A balance must be struck here. Clinicians should not be denied the ability to provide the right treatment to their patients, especially when that treatment would save the patient's life or prevent serious deterioration in their condition. Of course I have listened to the views of the noble Baroness, Lady Murphy, but the Government believe that there must be the balance I mentioned. The Government are not convinced that Amendment No. 16 strikes that right balance, but, equally, we see that there are powerful arguments against ECT being permitted in all four cases generally allowed by Section 62.
	Amendment No. 85 provides for any certificate that authorises treatment with ECT for a patient who is refusing consent before the enactment to cease to apply on enactment. It cannot be right that a consent-capable patient refusing ECT can still be given ECT compulsorily because the treatment was certified before the law changed.
	Noble Lords have made it clear that they consider the requirement that consent be given before ECT is provided to a patient who is capable of giving that consent should fall into that category. In the light of that, we have been persuaded to bring forward these amendments and to pursue consideration of the other issues that I mentioned.
	I have listened carefully to the debate. However, we prefer our amendment over Amendment No. 14. Our amendment makes clear the circumstances in which a refusal can be effected for a patient who lacks capacity to consent to ECT. Further, it provides for additional treatments to require the consent of patients who are capable of giving that consent and safeguards for the treatment of patients who cannot.
	Before I end, I inform noble Lords that in Committee we debated an amendment that would have provided that all clinics where ECT is administered would have to comply with the standards set by the Royal College of Psychiatrists' ECT accreditation scheme. My noble friend Lord Hunt advised your Lordships that he would make the Healthcare Commission aware of the debate and that he would arrange for officials to discuss with the royal college opportunities for encouraging more providers to put themselves forward for that scheme. Initial discussions have already taken place, and the Healthcare Commission's head of mental health policy, Anthony Deery, and the director of the royal college's research unit, Dr Paul Lelliott, along with Department of Health officials, will be meeting shortly to work through some proposals that the Royal College of Psychiatrists has put forward since Committee.
	The Government have proposed an alternative to Amendment No. 14 and, for the reasons that I have outlined, I ask the noble Baroness to consider withdrawing her amendment.

Earl Howe: My Lords, I return, without apology, to an issue that we debated in Committee which I and many others felt was left unresolved—that is, the importance of ensuring that clinicians who prescribe treatment have regard to patients' wishes.
	There is nothing in the 1983 Act about this matter but it is terribly important. Putting a duty of this kind into the Act would achieve three main benefits; it would undoubtedly improve a patient's autonomy and feelings of autonomy; it would increase the chances of consensual treatment and thereby avoid unnecessary compulsion; and it would improve patient safety because it is the patient himself who will often know what has previously harmed or helped him. In the latter context, it could even be life-saving.
	The Minister rejected a very similar amendment in Committee. He said that he felt this was a matter best dealt with in the code of practice. Perhaps I may say why I believe that he should reconsider that view. A decision to invoke involuntary treatment is a most serious step because of the interference with the patient's physical integrity that is involved in the process of compulsion. Having regard to the patient's wishes is not simply one aspect of practice among many; it is a core principle that informs practice. It is precisely because the Act is concerned with the legal processes that allow compulsion that this principle needs to be stated in the legislation. Stating a duty to abide by this principle, with specific reference to decisions about treatment, will focus attention on patient participation at a time in what is a very critical process when the patient's views can all too easily be disregarded.
	The current code of practice already states that the whole care programme should be discussed with the patient, and it sets out various duties about seeking consent and providing information to the patient. But we know from the most recent biennial report from the Mental Health Act Commission that there are all sorts of problems with the administration of Part IV of the Act. Discussions with the patient about proposed treatments are not recorded. Patients tell commissioners that they are not happy taking their medication even though there is a form 38 certifying their informed consent. Yes, this is a matter of good practice and better training, but where is the impetus for that to come from? It needs to come, I believe, from a duty in law to have regard to patients' wishes.
	The amendment would also require the clinicianto record any treatments requested by the patient and to record the reasons if the treatment is not given. Up to now the Government have rejected this idea as being too bureaucratic. I look at it the other way. A duty of this sort is clearly tied into the decision-making process for what treatment is to be given, and to include in a patient's notes a reference to the treatments he requests is not burdensome. Indeed, it could be seen as the least that would be expected, especially where the clinician responsible for particular treatments is not the same as the clinician with overall responsibility for the patent's case. Often when a treatment is requested by the patient there will be good reasons why it cannot be given. It may not be clinically recommended. It may not be possible to provide it. If so, that information ought to be available for future reference whether to the patient or other people authorised to access the patient's record.
	Of course, the duty set out in the amendment would not define the limits of the whole process of patient participation, nor would it prevent clinicians from enabling participation in a range of ways appropriate to the patient and the circumstances. However, it would give patients a modest but significant right to assert their wishes in the knowledge that these must be noted, and that any refusal must be a reasoned refusal. In an otherwise powerless position of being compulsorily sectioned, the opportunity for the patient to influence decisions is a very important one.
	It is that powerlessness at a time of mental health crisis that patients often talk about. The amendment would guarantee a worthwhile degree of patient autonomy, with all the benefits that I mentioned earlier. I hope that the Minister will be prepared to have another look at this issue. I beg to move.

Lord Hunt of Kings Heath: My Lords, this has been an interesting debate, repeating much of the argument made in Committee. The amendments are asking practitioners, be they doctors or approved clinicians from other disciplines, to do what they ought to do as a matter of good practice. That is essentially why the Government do not think that this provision should be in the Bill.
	It is surely axiomatic that clinicians should listen to patients and take careful account of their wishes, preferences and experience. The clinician who does not recognise that—and that patients, even those who are seriously ill, are very often experts in their own health—are missing a big trick. The fact that patients may be liable to compulsory treatment under the Act in no way diminishes the importance of encouraging them to express their wishes and engage in designing their own treatment, nor the imperative to pay close attention to what they say. Treatment without consent does not, and must not, mean treatment without regard to the patient's views.
	It is similarly fundamental that, where patients have made their views known in advance, those views should be treated with the same respect. That is not just a question of respect for patients' dignity; it can also be a powerful tool for providing efficient and effective care. In Committee, the noble Baroness, Lady Murphy mentioned research on the effectiveness of joint crisis plans as a way of reducing compulsory admissions and treatment.
	It is likewise undeniably important that good records are kept of decisions and the basis on which they were made. In response to the point made by the noble Baroness, Lady Murphy, about the relationship with the ECT amendment, I understand that we have accepted the role of binding advance decisions in that context. However, these amendments are not about binding decisions, which is the difference. I am happy to write to the noble Baroness in more detail if she would welcome it.
	I know that the noble Earl, Lord Howe, did not like my argument that there are many other aspects of good professional practice that we would wish to be followed but which noble Lords are not seeking to put in the Bill, but it is a strong point. It is clear that the Act already contains plentiful requirements to keep proper records where decisions are taken that restrict patients' freedom in the interests of their health or for the protection of others, which is why statutory forms have to be completed when patients are detained under Sections 2 and 3 and when renewing detention. It is why approved clinicians must certify a patient's consent to medication under Section 58 or else obtain written approval from a SOAD. I accept that there is an argument about whether the issue in relation to treatment is worthy of being added to the list of statutory reports and forms. We need to have a balance. We cannot make everything a formal legal requirement, or else we will end up with mental health legislation of the kind that was feared at the turn of the century: a well intentioned but overburdensome legislative framework.
	I was interested in what the noble Lord, Lord Alderdice, said. For a moment, I thought that he was going to speak in my favour when he talked about the problem of the persistent patient who is constantly making demands on the practitioner. That would be one of the problems of having a bureaucratic demand in the Bill. I was interested in the noble Lord's wide experience in Northern Ireland with the police, but I am not persuaded that professionals filling in countless requests would be a good use of their time. We are trying to get the balance of opportunity costs right.
	It is not entirely clear what such a provision would achieve in law. If it is merely a declaration of good practice, it is not for legislation but for the code. If it is for legislation, what is the sanction for failure to be? What is the sanction against the professional who does not keep these records? Would the noble Earl say that the effect of not filling in the form might be to render a patient's detention unlawful? He needs to consider that because I do not think it is a good thing to do, but there is not much point in including this provision in the Bill unless the consequences are known.
	Noble Lords may be a little impatient with me when I say that the code exists to take the principles and legislative framework implicit in the 1983 Act and outline the practice that professionals need to operate it. We know that the statutory code of practice is very strong. I cannot for the life of me see why such provision is not appropriate for the code.

Lord Patel of Bradford: moved Amendment No. 20:
	Clause 14 , page 9, line 44, at end insert—
	""care plan" means a structured plan which sets out timescales, responsibilities and services required to meet a patient's assessed mental health needs;"."

Lord Patel of Bradford: My Lords, I shall also speak to Amendments Nos. 43 and 53. These are revised versions of my amendments in Committee. As I have removed that part of the original draft which I sense was the real sticking point for Ministers—although it was a dog that did not bark in our debates in this House—I hope that we can now reach an agreement to provide the 1983 Act with a lever that helps implement the Government's admirable policy on care planning and risk assessment for detained patients.
	The amendments have been shorn of the provisions presented in Committee whereby the mental health review tribunal could choose to discharge a patient on the grounds that its care plan was not being implemented. It may be that those clauses could have been interpreted as a new criterion for discharge. I believe that the existing criteria are sufficient. Tribunals are empowered to discharge patients where the need for continued compulsion cannot be demonstrated, and that probably encompasses all the situations I had in mind anyway. That leaves us with a proposed duty on services to provide a comprehensive care plan to all patients detained in hospital or leaving hospital under a community treatment order.
	There would be a statutory duty to consult nearest relatives, carers and patients themselves in drawing up this plan where it was appropriate to do so.
	I will not bore the House by reiterating the current failings—and there are many—in the implementation of the care programme approach, or by stressing the consensus in Committee that care planning under such a scheme, if implemented properly, would be the cornerstone of good, humane and safe mental health services. I will simply address the Minister's objection in our previous debate that,
	"giving the CPA statutory force would require legislation to be so widely drafted as to be meaningless".—[Official Report, 15/01/07; col. 536.]
	I do not accept that the amendment before us today is meaningless or that it could not have any effect on services. Indeed, I do not accept that the current Act's provisions on planning for aftercare under Section 117 are meaningless, although they impose broadly drafted duties on health and social care authorities. Neither would I accept that Section 132 was meaningless, although it requires hospitals to provide information to patients and relatives in broadly drafted terms.
	Anyone working with the current Act during its time on the statute book would accept that such examples of broadly drafted duties have had some effect in changing professional behaviour and improving the service to patients and carers. Where services provided to patients and carers fall short of those requirements, their basis in law is an important lever to improve such services. It is a lever used by patients, carers and monitoring bodies. Of course, I speak as the chairman of the Mental Health Act Commission and must declare that as an interest. I entirely agree with the Government's position that detailed guidance on care planning should be established in the code of practice, but nothing in the amendment would change that.
	I also agree that it would be counterproductive to establish statutory duties that required care plans in addition to those required by the care programme approach, thus creating a bureaucratic burden on services, but nothing in the amendment would do that either. The amendment would simply place on services the statutory duty to do something that a great number of them fail to do at present: to provide patients with a decent care plan. It is government policy that they should do so and I cannot see why that should not be a legal requirement. I beg to move.